MB Civic

Conservatives Without Conscience
by John Dean

Review by NICK GILLESPIE

En route to getting shellacked by historic proportions in the 1964 presidential race, the Republican challenger, Senator Barry Goldwater, suffered through a smear job every bit as oversize and ugly as Lyndon B. Johnson’s gallbladder scar. Not the infamous “daisy ad” circulated by the Johnson campaign, in which a young girl innocently pulled the petals from a flower until a mushroom cloud filled the frame. While setting a new standard for negative campaigning, that TV commercial was at least rooted in Goldwater’s loose talk about using “low yield” atomic bombs in the escalating Vietnam War.

The truly low blow came in the pages of Fact magazine, which claimed to have asked some 12,000 psychiatrists whether Goldwater was “psychologically fit to serve as president of the United States.” Among the more than 1,800 replies were long-distance diagnoses pronouncing the challenger a “dangerous lunatic” and a “compensated schizophrenic” similar to Hitler and Stalin. The year after the election, Goldwater sued in federal court for defamation of character and won $75,000 in punitive damages.

The ghost of Barry Goldwater hovers over “Conservatives Without Conscience,” the new study of “authoritarian” Republicans by the Watergate-era White House counsel John W. Dean. The book, whose title is a play on the senator’s 1960 polemic, “The Conscience of a Conservative,” was conceived as a collaboration between Goldwater and the Nixon administration’s most famous heretic. Dean shared the senator’s dislike of the “so-called social conservatives” who have risen to prominence within Republican ranks over the past several decades, and the pair planned a book for which they would talk “with people like Chuck Colson, Pat Robertson and Jerry Falwell” and “attempt to understand their strident and intolerant politics.”

The project was cut short by Goldwater’s death in 1998, but Dean remained dedicated to unmasking what he sees as the new and dangerous breed of “tough, coldblooded, ruthless authoritarians” who have “co-opted” conservatism. For Dean, who sounded similar notes in “Worse Than Watergate: The Secret Presidency of George W. Bush” (2004), the president, Vice President Dick Cheney, the disgraced former House majority leader Tom DeLay, the cashiered speaker of the House Newt Gingrich, the felonious lobbyist Jack Abramoff and many others are not simply misguided or repugnant ideologues, relentlessly pushing an agenda at odds with Dean’s own (he variously describes himself as a centrist, a registered independent and “a ‘Goldwater conservative’ on many issues”); they are also rainmakers uniquely deranged by their lust for power, their limited ability “to see the world from any point of view other than their own” and their willingness to submit to authority.

The book draws heavily on the work of the social psychologist Bob Altemeyer, the creator of a scale for measuring “right-wing authoritarian” (R.W.A.) tendencies. Dean writes that Altemeyer is “not given to hyperbole in his scholarly work,” yet quotes him as saying that many “High R.W.A.’s” would “attack France, Massachusetts or the moon if the president said it was necessary ‘for freedom.’ ” Altemeyer says it’s “a scientifically established fact” that political, religious and economic conservatives are High R.W.A.’s, and Dean concludes that our government “is run by an array of authoritarian personalities” who are “dominating, opposed to equality, desirous of personal power, amoral, intimidating . . . vengeful, pitiless, exploitive, manipulative, dishonest, cheaters, prejudiced, meanspirited, militant, nationalistic and two-faced.” The estimated 20 to 25 percent of High R.W.A.’s among us, he warns, “will take American democracy where no freedom-loving person would want it to go.”

With Ahab-like monomania, Dean discovers that every objectionable conservative Republican action — from “taking America to war in Iraq on false pretenses” to Dick Cheney’s obscene outburst at Senator Patrick Leahy to harsh right-wing criticism of the nomination of Harriet Miers to the Supreme Court — reflects triumphant authoritarianism. For those of us with little or nothing good to say about the Bush administration, the Republican Party or conservatives in general, Dean’s book is ideological comfort food, providing not only tasty anecdotes about abuse of power but a rationale for dismissing political opponents out of hand. Did you know, for instance, that Senator Bill Frist has confessed to dishonestly procuring cats for experiments during his medical school days, writing in his autobiography, “I was totally schizoid about the entire matter”?

But “Conservatives Without Conscience” does little to advance a true understanding of contemporary politics, conservative or otherwise. Dean’s schema doesn’t go far in explaining, for example, the huge increases in non-defense discretionary and entitlement spending under President Bush and a conservative Congress. Alas, even the distortions and exaggerations used to build the case for war in Iraq are hardly unprecedented. (Remember the Maine? And the Gulf of Tonkin?) What Dean sees as dark new developments read far more like politics — and politicians — as usual.

Just as important, Dean’s book calls to mind nothing so much as the scurrilous treatment of Barry Goldwater back in the 1964 campaign. Yeah, yeah, politics ain’t beanbag and all that. But our political discourse is rancorous enough without attempting to psychologize our adversaries out of decent debate. When Ronald Reagan nominated Sandra Day O’Connor to the Supreme Court, the Rev. Jerry Falwell said every good Christian should oppose her selection. Goldwater, rising to the defense of a fellow Arizonan, responded that “every good Christian ought to kick Falwell’s ass.” If the politician nicknamed Mr. Conservative — to whom Dean’s book is dedicated — were to revisit today’s political scene, he might find another target at which to swing his leg.

Nick Gillespie is the editor in chief of Reason magazine and the editor of “Choice: The Best of Reason.”

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The Bourgeois Virtues: Ethics for an Age of Commerce
By Deirdre McCloskey

Review by JIM HOLT

The heft, the air and the title of this book all promise a big thesis. But what the devil could that thesis be? At no point during my reading of the 500-plus pages — an experience by turns piquant, maddening, edifying and wearying — was I altogether sure. Sometimes the author appeared to be arguing that capitalism makes us virtuous. Sometimes she seemed to be saying that virtue is the most important ethical idea we have. And sometimes she more or less announced that Love Is Bigger Than Economics. Each of these is a potentially interesting claim. But where, amid the luxurious orgy of quotations, epigrams, pop-cultural and poetic allusions, charts, lists, etymologies, asseverations, innuendoes, zingers and brickbats, was the meticulous reasoning that might establish their truth?

Perhaps, though, such a complaint misses the point. Deirdre McCloskey is a maverick, and in more ways than one. A classically trained economist — Harvard Ph.D., junior appointment to the star-studded University of Chicago economics department, résumé packed with rigorous quantitative research — McCloskey broke ranks in 1985 with “The Rhetoric of Economics,” which mocked the pretensions of economists to scientific objectivity. What the profession needed was less highfalutin mathematics and more emphasis on persuasion, stories, rhetoric: so she argued. Or he, I should say. For, at the time, Deirdre was still a man named Donald. In 1995 McCloskey broke ranks again by choosing to undergo a sex-change operation, the central event in her memoir, “Crossing” (1999). Currently a distinguished professor of economics, history, English and communication at the University of Illinois, Chicago, McCloskey is that rarest of things, a transexual, new-Christian, postmodern, minimal-government conservative. She is also, by her own avowal, “a tough urban girl who can take it as well as dish it out.”

And dish it out she does. Foremost among the many, many recipients of McCloskey’s abuse are those who (she thinks) misunderstand the nature of morality. How do we determine what is right and wrong? Modern moral philosophers have offered two sorts of answer. One focuses on consequences: according to the utilitarianism of Jeremy Bentham, for instance, the right action is the one that results in the greatest happiness for the greatest number. The other focuses on the acts themselves: for Immanuel Kant, the right action is the one that conforms to a certain idea of duty, regardless of consequences. (Thus, by Kant’s lights, it is always wrong to kill an innocent person on purpose, even to save the world.) McCloskey will have neither of these; each, she thinks, wants to reduce ethics to “a quick little formula, the pocket-sized card.”

In the last few decades, however, an alternative to utilitarian and Kantian ethics has emerged, one that harks back to the ancient philosophers. It centers neither on acts nor on their consequences, but on character. According to “virtue ethics,” morality cannot be captured in a universal code; the right thing to do in a particular situation is what a virtuous person would do. And how do we identify a virtuous person? Aristotle defined virtue as a quality of character that makes for a life well lived. Then he characterized the good life as a life lived in accordance with virtue. Circular? Today’s virtue ethicists obviously don’t think so, but they have nevertheless struggled to come up with an account of human nature that would give some definite content to the idea of virtue.

McCloskey likes virtue ethics for two reasons. First, it elevates stories over abstract rules. The guide to action becomes “What would X do?” where X is to be filled in by one’s moral exemplar of choice, who might be drawn from the Bible, say, or from a Jane Austen novel. Second, virtue ethics lends a womanly touch to moral theory, which has long been a “guy thing,” with masculine notions like justice and autonomy shutting out feminine notions like caring and love. Many of the movers behind virtue ethics, she notes with satisfaction, have been women, like Elizabeth Anscombe, Iris Murdoch and Martha Nussbaum. (On the other hand, some pretty important male philosophers — Alasdair MacIntyre, Bernard Williams, John McDowell — have also played a role. One man that McCloskey decidedly does not want on her team is William J. Bennett, who, she observes with some severity, pumped his royalties from “The Book of Virtues” into slot machines.)

In taking the question “What sort of person ought I to be?” as fundamental, virtue ethics entails a richer moral psychology than its rivals. Yet it is not very useful in resolving ethical dilemmas. Should I betray my friend or my country? Utilitarianism at least yields an answer (friend). Virtue ethics tells me to do what a virtuous person would do in the circumstances — scant guidance for anyone who lacks the virtuous person’s built-in ethical know-how. And the egoistic emphasis on cultivating one’s virtue can easily lead to a preening moral vanity, not to say self-infatuation. How much more likable the Kantian ideal of doing the irksome thing simply because it’s your duty, damn it.

McCloskey does not trouble to rebut such criticisms. Instead, she submerges them in a flood-tide of contrary quotations from other thinkers. (She has read the library, and won’t let you forget it.) Her real interest is in applying virtue ethics to capitalism, and to capitalism’s distinctive product, the bourgeoisie. In “The Rhetoric of Economics,” McCloskey mocked bourgeois man as a ludicrous character, “at once master and servant, inclined therefore to hypocrisy and doubletalk, ’umble and yet pompous.” But she appears to have had a change of heart. McCloskey now sees the bourgeoisie as a noble class, the chief repository of the virtues instilled by commercial life.

And what are these “bourgeois virtues”? Thrift? Punctuality? Respectability? Cleanliness? McCloskey has nothing so dismal in mind. Rather, she is talking about the four classical pagan virtues — courage, justice, temperance and prudence — plus the three Christian virtues of faith, hope and love. Especially love. Here is something her fellow economists are incapable of capturing in their arid quotations. “Modern capitalist life is love-saturated,” she declares, as “markets and even the much maligned corporations encourage friendships wider and deeper than the atomism of a full-blown socialist regime or the claustrophobic, murderous atmosphere of a ‘traditional’ village.” We already knew that markets make us rich. But McCloskey wants to convince us that markets are also good for the soul.

Here is where things ought to get interesting. Even fans of capitalism concede that it can have a corrosive effect on morals and community ties. Critics have argued that it fosters consumerism, greed, narcissism, Gesellschaft over Gemeinschaft, anomie, Enron. . . . The bourgeois is a beastly little creature — so say the German Romantics, D. H. Lawrence and, in a rather drier way, Francis Fukuyama. How might these people be proved wrong? The pro-bourgeois case would start with the historical observation that liberal values like tolerance and freedom have been a product of commercial life. It would proceed with the careful marshaling of evidence that capitalism can be ethically beneficient — that, for example, markets generate trust. And who better to construct such a case than a polymath econometric virtuosa like McCloskey?

But instead we get rhetoric. There is polemical hand-waving (“Who says?”; “I think not”; and, most logically decisive, “Point, schmoit”). There is sophomoric sarcasm: Stephen Weinberg, a Nobel laureate in physics, is mocked for his reasoned stand against religion, and the French philosopher André Comte-Sponville is dismissed with stale jokes about Gauloises and Jerry Lewis. Anecdotes masquerade as data: the evidence against the Marxist thesis that work is alienating under capitalism is the author’s perception that Chicago garbagemen seem to enjoy emptying trash bins. McCloskey is contemptuous of scientists like Steven Pinker for trying to explain the origins of virtue along Darwinian lines; yet her dogmatic counterclaim — “Every human is born in sin, and must seek redemption” — doesn’t greatly advance the argument.

And how strong, really, is the correlation between bourgeois virtue and laissez-faire capitalism? Like her friend Milton Friedman, McCloskey would like to see the role of the state much reduced. She says she dreams of “literally one-third to one-fifth of the government we now have.” Yet a social democracy like Sweden, where the state plays a far greater role in society, would seem to be the very soul of bourgeois virtue by many objective standards, with less violence and more solidarity and trust than the United States.

McCloskey probably won’t sway many readers who do not already share her convictions, but for all the book’s flaws one can’t help being impressed by her verve, erudition and fitful brilliance. When she argues that Vincent van Gogh was actually a good bourgeois, or that Jesus, notwithstanding the Sermon on the Mount, was pro-commerce, the rhetorical moves are as deft as the claims are surprising. And who would have imagined that the film “Groundhog Day,” in which the annoyingly smug Bill Murray character comes to see the point of humility and love, epitomizes the process by which virtue is inculcated? But it is a little dispiriting to hear McCloskey announce that this book is merely the first of four (!) projected volumes by her on the subject of virtue and capitalism. Somewhere within this loose, baggy monster there has to be a slim, cogently argued treatise struggling to get out.

Jim Holt, a regular contributor to The New Yorker and The New York Times Magazine, is working on a book about the puzzle of existence.

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The Foreigner’s Gift: The Americans, the Arabs, and the Iraqis in Iraq
By Fouad Ajami

The End of Iraq: How American Incompetence Created a War Without End
By Peter Galbraith

Review by NOAH FELDMAN

Critics of American policy in Iraq since 2003 have sometimes charged that the United States created the sectarian divisions in the country by treating Iraqis as Shiites, Sunnis or Kurds, rather than simply as Iraqis. But the opposite has in fact been the case. Under the influence of exiles like Ahmad Chalabi, administration officials anachronistically insisted that Iraq was cosmopolitan and postethnic. The most serious intellectual deficit that has plagued the American presence in Iraq — and a crucial reason for our repeated failure to predict Iraqis’ behavior — has been insufficient awareness of the conflicting perspectives of Iraqis from different backgrounds and communities.

Two new books set out to improve our understanding, each providing a window into particular aspects of the current situation in Iraq. Both authors are fascinating, indeed idiosyncratic figures, and each has played a role in the events of the last three years: Fouad Ajami, a professor at the Johns Hopkins School of Advanced International Studies, has been a regular White House visitor as an unofficial adviser to the Bush administration. Peter W. Galbraith, a former Senate staff member and ambassador to Croatia, has been a constitutional adviser and political counselor to the Kurdish leadership in Iraq.

Few other Americans have Ajami’s distinctive qualifications for reflecting on the Iraq war. Born to a Shiite family in Lebanon, he has written several important books about Middle Eastern political culture, including a recognized classic on the Lebanese Shiites, “The Vanished Imam.” He supported the removal of Saddam Hussein, and his extraordinary level of access in Washington is reflected in “The Foreigner’s Gift,” which recounts many conversations he had in Iraq while shadowing American officials or traveling with close American allies like Chalabi. Respected by politicians who disdain most academics, and excoriated by antiwar academics who detest the present government, Ajami richly deserves the attention of both camps.

His core argument is that the trouble we are seeing in Iraq results from the profound unwillingness of Sunni Arabs in Iraq and elsewhere to accept the rise to power of Shiites in what is, after all, their own country. Shiite Arabs have long been second-class citizens, repressed and kept from political power even where, as in Iraq, they are a numerical majority. “For us — rule; and for you — wailing,” runs the adage Ajami cites to capture Sunni attitudes to Shiites. Though he does not say so, the second clause has at least two meanings. The Shiites are meant to bemoan their subservient state; at the same time, they are being stereotyped on the basis of the annual rites of mourning and self-flagellation Shiites practice in memory of the 7th-century martyrdom of Imam Hussein.

For Ajami, the foreigner’s gift is, in the first instance, the removal of dictatorial rule and the opportunity for self-government. But Iraqi Sunnis have refused to accept their transformation from rulers of the country to a minority within a democracy. The local insurgency was born of this denial, and has been augmented and transformed by an infusion of support from elsewhere in the Sunni world. This support, according to Ajami, comes not just from the jihadis crossing borders but from the mainstream (Sunni) Arab news media, which have depicted the United States as an Israel-like occupier rather than as a force liberating Shiites from Sunni oppression and all Iraqis from Saddam Hussein’s tyranny.

Meanwhile, Ajami suggests, Shiite leaders have begun fitfully to come to terms with what it means to exercise secular political power in the name of a group that is, after all, a religious denomination. He describes a meeting with Grand Ayatollah Ali al-Sistani — one of the first such accounts to appear in English — and is impressed by the leader’s light touch when it comes to politics. Ajami is sophisticated enough to realize he is present by virtue of Shiite birth, not American citizenship (in fact Sistani regularly refused to see non-Shiite Americans). In one of the most self-revealing passages of the book, he confides his discomfort at the possibility that he will be asked to perform prayers whose rituals he does not know. It is easy to feel sympathy for the cosmopolitan immigrant-expatriate in this moment, especially one whose very name, Ajami, means “foreigner.” Viewed as a credentialed native Arab informant by the Bush administration and as an American traitor by the Arab press, he is a proud Shiite. Yet face to face with the most beloved Shiite religious leader alive, he senses his own alienation from the very tradition that has gotten him in the door.

Ajami’s American sensibilities come through most powerfully in his discussions of the American soldiers he meets in Iraq, from generals like David Petraeus to anonymous enlisted men. Ajami honors and respects their dedication, their optimism and their genuine desire to improve Iraq, and he quotes whole pages from their e-mail messages. But his world-weary take on Sunni irredentism ultimately makes the Americans seem naïve and out of place. As the violence increases and Iraqi deaths mount, the foreigner’s gift assumes the terrible ironic meaning of destabilization and terror. Ajami maintains that it is too soon to know whether the war will be considered heroic or tragic, and so, formally at least, he does not despair of a positive outcome. But one is left wondering how someone so cynical about the dysfunctionality of Arab political patterns could have been so optimistic about the “Baghdad spring” in the first place.

If Ajami is the self-made outsider from the Lebanese hinterland who has reached the corridors of power, Galbraith is an aristocrat of American foreign policy who has thrown in his lot with the stateless Kurdish people. A son of the economist John Kenneth Galbraith, presidential adviser and United States ambassador to India, he first encountered the Kurds during his long tenure as a member of the Senate Foreign Relations Committee staff. Although his book is titled “The End of Iraq: How American Incompetence Created a War Without End,” nearly a third of it is devoted to the story of Hussein’s oppression of the Kurds and Galbraith’s efforts on their behalf before and during the Kurdish uprising that followed Operation Desert Storm. When President Clinton sent him to Croatia in 1993, he not only turned his attention away from Kurdistan but also became a second-generation ambassador.

When that other hereditary member of the governing elite, George W. Bush, assumed the presidency, Galbraith, who had once disguised himself as a Kurd to avoid capture in 1991, reassumed the mantle of the Kurds’ chief guide to the folkways of Washington. This time, though, he was a professor at the National War College. In Galbraith’s telling, the Kurdish leadership made a tactical determination not to cross the American government on Iraq policy, but at the same time, maintained — and still maintains — a profound desire for total independence. The Kurds have been willing to participate at high levels in the Iraqi government, and even to ratify a constitution giving them de facto autonomy under the rubric of federalism. But to Galbraith, this position is temporary, convenient and a sham. “Every Kurd I know,” he says, “wants an independent Kurdistan.”

This perspective on Kurdish politics is extremely valuable, and in certain ways borne out by, for example, an unofficial referendum in which more than 90 percent of those casting ballots in Kurdistan expressed the desire for independence. (Galbraith claims credit for suggesting that the referendum be held on election day outside the official polls.) Galbraith is undoubtedly correct that most Kurds would prefer to be on their own, particularly in light of their history of being oppressed and killed by Iraqi (and other) governments. But it is much less clear that the Kurdish leadership is engaged in an elaborate subterfuge when its members participate in the government of federal Iraq. They have much to gain from a serious role in the national government, and their bargaining position is only strengthened by polls or votes showing that their constituents crave independence.

By his own account, Galbraith’s purpose in his book is to advocate a policy of American withdrawal from Iraq. That policy is simple: break the country into parts, beginning with an independent Kurdistan, possibly followed by the further breakup of the Arab parts of Iraq into Shiite and Sunni regions. This opinion needs to be taken very seriously, because through Galbraith’s writings and foreign policy connections, it has entered the rhetoric of some in the Democratic Party, including the ranking minority member of the Senate Foreign Relations Committee, Joseph R. Biden.

The chief problem with the “break Iraq in two” option is that creating an independent Kurdistan does absolutely nothing to address the present violence in the country. It might be nice for the Kurds, especially if the United States gave them the Kirkuk oil field and then permanently stationed large numbers of troops in Kurdistan to protect it. But Kurdistan is mostly peaceful, and at present Kurds are not fighting Arabs in Iraq, except to some small degree around disputed Kirkuk itself. The violence in Iraq is predominantly Sunni-Shiite; and the United States desperately needs the stabilizing third force of the Kurds in the national leadership and the armed forces to have any hope at all of damping it down. To the contrary, breaking off Kurdistan would create a new violent front, because a Sunni ministate could never survive without a share of Kirkuk’s oil, and so Sunni insurgents would have to turn their attentions to the Kurds. This is to say nothing of the continuing concerns of Turkey about an independent Kurdistan, or the possibility of Turkish encroachment having to be confronted by American forces.

AS for breaking up the rest of the country, Galbraith frankly concedes there is no good solution for Baghdad, with its mix of Sunnis, Shiites and Kurds, which includes perhaps a quarter of the whole population of the country. “No good solution” is code for massacres of the kind that have accompanied breakups from India-Pakistan in 1947 to Yugoslavia in the 1990’s.

So it is a bit mystifying to hear Galbraith say that he is promoting American interests in calling for an independent Kurdistan and a partitioned Iraq. There is a long tradition, stretching from Byron’s love of Greece to T. E. Lawrence’s Arab nationalism and Orde Wingate’s Zionism, of foreigners bringing their considerable talents to advancing the independence of faraway peoples. Often such identified advocates take a harder nationalist line than the local leaders themselves, and often, like Lawrence and Wingate, they believe they are advancing the interests of their home country. But it is another matter for prominent Democrats to buy into Galbraith’s claim that breaking up Iraq will make us or the Iraqis safer. The Kurds have as strong a claim to self-determination as anyone, but for now it should be up to their leaders, not someone else, to call for something more than the de facto autonomy they currently enjoy.

Noah Feldman is a professor of law at New York University and a senior adjunct fellow at the Council on Foreign Relations.

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Guantanamo and the Abuse of Presidential Power
By Joseph Margulies

Review by JONATHAN MAHLER

The laws may be silent during times of war — inter arma silent leges, as the much quoted Latin expression goes — but defense lawyers are not. And so no sooner had President Bush started rolling out his plan for detaining prisoners captured in the war on terror than a group of civil rights attorneys set about trying to undermine it. “The question is not whether the United States has the power to imprison people seized in connection with the war on terror,” Joseph Margulies, one of those lawyers, writes in “Guantánamo and the Abuse of Presidential Power.” “The question is, and has always been, whether the exercise of this power would be restrained by the rule of law.”

More specifically, the question is whether the president has the right as commander in chief to imprison suspected terrorists without a hearing; hold them incommunicado indefinitely and without the protections guaranteed by the Geneva Conventions; and bar them from seeking redress in the federal courts. Or whether, as Margulies argues, President Bush’s detention policies amount to a radical assertion of executive authority.

It’s impossible to overstate the importance of this debate. Defeating radical Islam is going to require striking the proper balance between aggressiveness and restraint, a recognition that we are just as susceptible to the corrupting influence of power as anyone else. As President Bush himself told the nation nine days after Sept. 11: “We are in a fight for our principles, and our first responsibility is to live by them.”

Unfortunately, as Margulies persuasively details in this cogent and pellucid book, the president has not always lived up to his clear-eyed rhetoric. Margulies was the lead counsel in Rasul v. Bush, a case brought on behalf of a group of Guantánamo detainees from Britain, Australia and Kuwait. Invoking habeas corpus, the so-called Great Writ — which compels custodians to justify the detentions of their prisoners — Margulies and the rest of his legal team maintained that the government had to allow these men to confront the allegations brought against them. The administration’s position was that as foreign nationals captured on the battlefield and held outside the sovereign territory of the United States, these prisoners had no right to challenge their imprisonments. Further, the government argued, Margulies should be prohibited from meeting with his clients; the detainees should not even be told a lawsuit was under way.

The Supreme Court ruled in favor of the detainees, 6-3, in the summer of 2004. It was a decisive defeat for the administration. Soon, dozens of pro bono lawyers of every persuasion, those from tony white-shoe firms and those from left-wing civil liberties groups, were flying down to the military detention camp in Cuba to meet with prisoners and file habeas suits. The Guantánamo Bay Bar Association, the lawyers called themselves.

This book is less a narrative of the Rasul case, though, than a broad indictment of the administration’s detention policies. Those policies, stressing prevention at the expense of the rule of law, grew out of a justifiable desire to find a way to hold and interrogate suspected combatants the White House was not ready to charge. The president decided to do so by treating detainees as military prisoners rather than criminal defendants. The problem, as Margulies explains, was that he then refused to accord prisoners fundamental rights guaranteed to them under the laws of war. Instead, Bush claimed constitutional authority as commander in chief to build an ad hoc legal system unilaterally, in which neither criminal, military nor international law applied.

The dangers of this approach were underscored by the recent suicides at Guantánamo. Were these men hardened Islamic extremists engaged in what the United States camp commander characterized as “asymmetrical warfare”? Very possibly, but we can’t be sure because we have no reason to trust the system that established their guilt. What is clear is that if their goal was indeed to martyr themselves, mission accomplished. Not only have they possibly encouraged scores of aspiring jihadists, they have provided another occasion for more politicians and editorialists around the world to join the chorus calling for the closure of Guantánamo.

Margulies incisively dissects the now infamous memos from the Justice Department’s Office of Legal Counsel that provided the architecture for the administration’s detention policies, and he effectively contrasts America’s treatment of detainees in the war on terror with its treatment of captured combatants in previous wars, including the Vietcong, who also operated within the civilian population. He catalogs the abuse of detainees while showering deserving praise on the career military men and diplomatic professionals, like former Secretary of State Colin Powell, who recognized the dangers of abandoning the Geneva Conventions. And he takes aim at the inadequacies of the review panels that the administration created in response to the court’s decision in Rasul.

In a sense, Margulies doesn’t give himself and his colleagues enough credit. “Camp Delta continues in 2006 much as it began in 2002,” he writes near the end of his book. This is not strictly true. Thanks largely to the work of pro bono lawyers like him, Guantánamo has taken some meaningful strides toward legal accountability. It’s been almost two years since the last planeload of prisoners was deposited on the island, and around 300 detainees have been transferred to their native countries or released. The “close Guantánamo” chorus has been heard: even the president says he’d like to shut the prison down. The critical question now is what sort of detention system will replace it. Most of all, without the victory in Rasul, the Supreme Court would never have ruled last month against the government in Hamdan v. Rumsfeld, forcing the White House to reconsider its treatment of detainees and delivering an even more powerful blow to executive overreach.

Jonathan Mahler, a contributing writer for The New York Times Magazine, is working on a book about Hamdan v. Rumsfeld.