Back before the “war on terrorism,” Guantánamo was notorious as the world’s first prison camp for HIV-positive people. For years, with the Center for Constitutional Rights, Harold Koh and Yale Law School, I represented Haitian refugees diagnosed with HIV who’d been imprisoned there by the United States in a semipermanent limbo. Federal District Court Judge Sterling Jackson, who finally ordered the surviving Haitians freed, described the deplorable conditions sick prisoners endured: “They live in camps surrounded by razor barbed wire. They tie plastic garbage bags to the sides of the building to keep the rain out. They sleep on cots and hang sheets to create some semblance of privacy. They are guarded by the military and are not permitted to leave the camp.”

Outrage and lengthy legal battles finally succeeded in closing the prison camp. But even though the courts had ruled that the United States was responsible for what happened in Guantánamo, some government officials clearly decided to continue advocating for it as a place that could be not only out of sight but outside the law.

A new era dawned five years ago, when the first of several hundred post-9/11 prisoners were taken to Guantánamo on Jan. 11, 2002. They were described by then Secretary of Defense Rumsfeld as “the worst of the worst” terrorists, but none of their names were made public. Just one prisoner, an Australian, managed to have his embassy informed of his capture; his family was notified and went to an Australian lawyer. But the lawyer could not visit, see or speak with his client, nor could any other outsider. Guantánamo prisoners, said the United States, were to be held incommunicado, without any access to courts and without any right to file writs of habeas corpus.

I saw the lawyer’s name in the paper and contacted him. The conversation led to a debate at CCR about whether to take the case. As a New Yorker, I had personal doubts about representing anyone suspected of being responsible for the 9/11 attacks; everyone at CCR knew our representation would be wildly unpopular. At that time no other human rights organization was willing to step in. And yet we decided to go ahead, believing that the right of every human being to challenge detention is fundamental. Habeas corpus, the central Western safeguard that prevents arbitrary loss of liberty, makes it impossible for people to be detained on the basis of a ruler’s whim. It is the core hallmark of a free society, and we believed we had to defend it. On behalf of the Center for Constitutional Rights and a very small group of lawyers, including Joe Margulies and Clive Stafford Smith, I agreed to represent that first prisoner — David Hicks.

Hate mail poured in. “These terrorists are not human, so human rights don’t apply,” said one letter.

But we continued to litigate our case, joined by another courageous attorney, Tom Wilner, from a major law firm. We argued that those imprisoned at Guantánamo had the right to file writs of habeas corpus and force the government to legally justify their detentions in court hearings. We lost in the district court and the appeals court, but we took the case, Rasul v. Bush, to the Supreme Court, and in June 2004 we won. CCR received scores of letters. This time they were not hate mail. Instead, we were told repeatedly that the writer’s “faith in America had been restored.”

Eventually, joined by hundreds of volunteer attorneys of all political persuasions, we filed habeas corpus petitions for everyone whose family we could find, and we won attorney access to the prison. Once we began to see clients we were able to get more and more names, and the veil of secrecy at Guantánamo lifted a bit.

Interrogation under torture was the modus operandi there, as I found out when we interviewed the newly freed “Tipton Three,” innocent and wrongfully imprisoned young men from England. I was shocked by what they told me about the way prisoners were treated: Hooding, stripping, sleep deprivation, stress positions, dogs, removal of the Quran, forced shaving and sexual humiliation were common practices.

One of our clients, Mohammed al-Qahtani, was subjected to months of torture that was documented in a log kept by his guards. He was deprived of sleep for almost two months, stripped, held on the floor and sexually abused by a female interrogator, forcibly hydrated with liquids while shackled to a chair and not permitted to go to the bathroom. His CCR attorney, Gita Gutierrez, reported that Mohammed was still suffering from the effects of his torture and abuse: He “painfully described how he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators.”

Mohammad never received a hearing. In fact, none of our clients received the hearings the Supreme Court required. In 2005 the military essentially declared all prisoners at Guantánamo “enemy combatants,” not entitled to the protections of civil law. Congress and the president passed legislation, the Detainee Treatment Act, barring detainees at Guantánamo from bringing future habeas corpus challenges to their detention or its conditions. But in June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the federal government did not have the right to set up special military commissions in Guantánamo. The ruling implied that the Bush administration would have to try detainees either by court-martial (as U.S. troops and prisoners of war are) or by a civilian federal court.

But the government still refused to give our clients hearings, and in October 2006 the president persuaded Congress to pass the Military Commissions Act, which abolishes habeas corpus not just for Guantánamo detainees but for any noncitizen the president labels an enemy combatant. We will take the Military Commissions Act, too, all the way to the Supreme Court, but for now it is law.

Five years have gone by and we are still fighting a Sisyphean struggle. No detainees at Guantánamo or in any other detention facility have yet had a hearing in a court. They are again waiting for our challenges to be heard — that is, for the Supreme Court, for the third time, to decide that they have rights. But by that time six or seven years will have passed since the first post-9/11 prisoners arrived at Guantánamo.

The realities of imprisonment there are worse than I could have imagined. Five years ago, I assumed that the Bush administration would claim Guantánamo as a law-free zone where the Constitution did not apply and where no court could examine the legality of the detentions. But I never believed that the detainees would be tortured and subjected to cruel treatment. I was dead wrong.

It’s true that many torture techniques used at Guantánamo appear to have stopped — in part because we now have CCR and other attorneys going to the base, in part because the men at Guantánamo never had very much to offer. Under pressure military policy has shifted, and the men called the most dangerous terrorists have yielded very little information. But these techniques have migrated to other places, even more secretive.

And the sad reality is that torture is now more accepted than it was five years ago. The Military Commissions Act, in addition to abolishing habeas corpus, made cruel treatment and torture the law of our land. The act grants an amnesty to those in the administration who have engaged in torture and cruel treatment since 9/11, and it modifies U.S. criminal law so they can continue to torture with impunity in the future. At other U.S. detention facilities, such as those at Bagram, Afghanistan, and secret CIA sites around the world, the kidnapped and the captured are “disappeared” and can be tortured. In order to reestablish the rule of law, the human rights that are at issue at Guantánamo must be extended so that U.S. law governs all U.S. actions.

These rights include lawful trials. The administration now plans to build a $125 million courthouse at Guantánamo to try detainees by military commissions under new procedures that have not yet been fully outlined. Whether these are lawful will again need to be tested in the courts. And though the administration says it plans to try as many as 80 people, whether any such trials will ever happen is not clear.

So time moves almost surreally slowly on Guantánamo, where today more than 400 people are still imprisoned, the vast majority without charges. Despite all the Supreme Court rulings, despite the popular outcry, despite calls from the military’s own lawyers, Human Rights Watch, Amnesty International, British Prime Minister Tony Blair, German Chancellor Angela Merkel and former U.N. Secretary-General Kofi Annan to provide the detainees with rights and close the camp, there’s no sign that Guantánamo will be shut down soon.

I wish after five years I could say we are emerging out of a long dark night of detention, disappearances and torture. But rolling back the Military Commissions Act, through litigation and legislation, and reestablishing the rule of law are a huge task. It will take political courage, an aroused public and constant vigilance. I hope — for the sake of prisoners, their families and America — it does not take an additional five years.

As president of the Center for Constitutional Rights, I’ve challenged the Bush administration for acting as a law unto itself and blatantly disregarding the Great Writ in its prison camp at Guantánamo Bay, Cuba. Twice, the Supreme Court has insisted that the administration respect habeas corpus; repeatedly, the White House has ignored the court’s rulings, going to Congress to get approval for previously unthinkable kinds of detention.

Now, within the next few days, it is conceivable that Congress will abolish the writ of habeas corpus for any non-citizen who is detained outside the country. Stripping away the political nitpicking, linguistic compromises, calculated deal-making and cynical maneuvering of last week’s “compromise” in Congress, two questions remain at the center of legislation about the rights of prisoners in Guantánamo.

The first, about torture and the Geneva Conventions, is straightforward: Are we human beings?

The second, about habeas corpus, is, do we believe in the rule of law?

I’ve spent my life defending victims of torture, and I firmly believe that to be human means recognizing that torture, whether committed by Nazis, Stalinists, Islamic fundamentalists or Americans, is never justified. Inexcusably, the compromise forged by the Bush administration and Republican senators now blurs the line on Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” It’s morally corrupt to attempt to parse exactly what kinds of cruelty, which degree of mutilation, and what depth of degradation are OK: This cannot be an area where “compromise” is acceptable.

But it’s also crucial to understand that this legislation places our very belief in the rule of law at risk. The contempt for the law shown by recent developments disturbs me enormously, and shows how far our national values have been hijacked by the extreme right and its partisan agenda.

My office represents and coordinates writs of habeas corpus on behalf of all 460 detainees held at Guantánamo. Almost none of these detainees have been charged with a crime. Many, according to the administration’s own claims, have never actively taken hostile action against the United States, but were turned over to the Americans by war lords or bounty hunters. Others are confused, elderly, or simply arrested in error. As Col. Bill Cline, deputy camp commander at Guantánamo, acknowledged, “Some of the prisoners are victims of circumstance, caught up in the wrong place at the wrong time.”

But without habeas corpus hearings, there is no way for detainees to know the charges against them, or to refute any evidence that might be wrong. Like our client Maher Arar — a Canadian sent by the United States to Syria, where he was tortured in a secret prison until the Canadians finally demanded his release — they are unable to prove their innocence because they have no way to test their detention. And without accountability to a court, as we have seen over and over, abuse of prisoners quickly becomes rampant.

We have been trying to get the Guantánamo prisoners a habeas corpus hearing in federal court for nearly five years. We had a major victory in June 2004 (Rasul v. Bush) when the Supreme Court ruled that courts are open to aliens held outside the United States, and that they have the right to file writs of habeas corpus to test their detentions. Evoking the central importance of habeas corpus to our system of law, the court wrote: “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.”

Within days of our victory something remarkable occurred. Hundreds of lawyers from big firms and small firms, Democrats and Republicans, Christians, Jews and Muslims, all stepped forward to represent Guantánamo detainees. They did this at great expense and personal sacrifice, traveling to meet their clients at Guantánamo — and, in the process, discovering what we now know about the torture and abuse there, and putting an end to much of it. These lawyers undertook these cases on principle, believing, as did the Supreme Court, that no person should be imprisoned solely at the behest of the executive, and that all human beings are entitled to the protections of law.

And yet, as of today, not one of our clients has been given the required habeas corpus hearing that would determine whether he was properly detained. The administration stonewalled, stalled and flatly refused to obey the court, fighting hard to retain the privilege of kings.

In 2005, the Bush administration went to Congress and got legislation passed that it hoped would abolish habeas corpus for our clients. It did not work. Once again the Supreme Court stepped in and in June 2006 (Hamdan v. Rumsfeld) ruled that the legislation, called the Detainee Treatment Act, did not apply to our clients.

Refusing to accept the court’s verdict, the administration went back to Congress yet again: This week, Republicans in Congress appear ready to pass new bills abolishing habeas corpus. The current legislation does not just apply to those held at Guantánamo but to aliens detained anywhere outside the United States; it is retroactive, so any pending habeas petitions will be knocked out of court.

We believe that this legislation is as unconstitutional as the previous attempts by the administration to abolish habeas corpus, and that, as with previous attempts, it will eventually be overturned by the Supreme Court. But it should not be passed at all: It is unconscionable that illegally detained individuals need to languish in prison for years more without charges or hearings while awaiting judicial remedy.

The remedy is at hand. It is one that has been with us since 1215: the Great Writ. As citizens, we must keep it alive.

Sen. Russ Feingold has called for a censure of the president for breaking the law, and civil rights groups, including the Center for Constitutional Rights where I work, have called for impeachment.

Yet President Bush seems to be betting — as he has, successfully, before — that the public will overlook his crimes and allow him to continue destroying, as Feingold put it, both “the separation of powers and the rule of law.”

Indeed, Friday’s Senate Judiciary Committee hearings on Feingold’s censure proposal under chairman Arlen Specter, who has characterized the proposal as baseless, are expected to be brief.

Thirty years ago, President Nixon’s warrantless wiretapping scandalized the nation and became one of the articles of impeachment against him. And though Nixon invoked “national security,” Congress and the Supreme Court insisted that the law had to govern all intelligence and counterintelligence gathering by the government, even when it was undertaken to protect against terrorism.

After Nixon’s disgrace, new laws were written to enable the government to continue the surveillance of both U.S. citizens and foreigners on intelligence and national security grounds. In 1978, the Foreign Intelligence Surveillance Act (FSIA) was established, as the “exclusive means by which electronic surveillance” could be conducted; a secret court was empowered to authorize phone taps and, later, e-mail and physical searches. The FISA court was set up to oversee highly sensitive U.S. counterintelligence objectives, and government agencies could get approval to spy if they showed the court their activities were intended to counter espionage, sabotage, assassinations, and international terrorist activities. FISA, which provides criminal penalties for unauthorized wiretapping, has been a virtual rubber stamp for government requests: In the more than 18,000 known cases, there have been only five refusals to authorize surveillance.

And yet, beginning in 2001, the Bush administration sidestepped even the FISA court in order to conduct its own off-the-radar, entirely uncontrolled spying, unaccountable to Congress. For more than four years it engaged in widespread electronic surveillance of Americans and foreigners without warrants from any court, including FISA magistrates. In CCR v. Bush, a case I helped file this January on behalf of the Center for Constitutional Rights and its lawyers, we argue that since the president may only conduct electronic surveillance pursuant to FISA, which criminalizes surveillance outside its terms, President Bush, acting outside those “exclusive means,” is committing a crime. On Tuesday, five former FISA judges, including one who apparently resigned in protest over Bush’s secret eavesdropping, testified to Congress; several expressed doubt about the constitutionality of a president ordering wiretapping on Americans without a court order.

This is, of course, not the first time that Bush has simply ignored inconvenient provisions of the law and acted unilaterally: This administration has pushed the boundaries of executive power in ways that make Richard Nixon’s White House look like a model for the system of checks and balances. Bush has insisted that he can disregard the McCain Amendment’s prohibition barring torture; that Supreme Court rulings on habeas corpus can be stonewalled; and that he can ignore the congressional oversight provisions of the Patriot Act.

And now it turns out that Bush’s eavesdropping program is not only in criminal violation of FISA, but an end-run around one of the most basic pillars of our system of law: the constitutional right to counsel and the confidentiality of attorney-client conversations necessary to protect that right.

As an attorney for CCR, which has brought many of the most important legal challenges to the Bush administration since Sept. 11, I thought, when the NSA program was revealed, that we could be among the targets of the spying. We represent hundreds of Guantánamo detainees and high-profile victims of torture and kidnapping; we were winning cases against the government and successfully challenging their illegal actions in court. I had ample reason to believe that our conversations with our clients, witnesses and colleagues would be overheard, and even our families’ phone lines would be tapped. Now, with the admission by the government that it has not “excluded” listening in to attorneys’ conversations, I feel sure that this once absolute boundary has been crossed.

The attorney-client privilege is more than a legal nicety. It is central to the American idea of justice that all clients be able to speak in confidence with those who represent them. It is fundamental to an honest defense that attorneys have access to their clients without surveillance. In the past, when wiretaps picked up attorneys talking with clients, the statutes required turning off the tap as long as the attorney was on the line. But these basic rules have apparently been cast aside by the president.

We at CCR believe that if the Bush administration had gone to Congress and asked for a broader statute, or even to the FISA court for approval, they would never have been able to get permission for listening to attorneys or doctors. So they simply wiretapped attorneys on the sly, without authorization. By spying on me, my colleagues, and other attorneys who challenge them, the administration can learn our legal strategies, end our relationship of trust with our clients, and in essence make us into agents of the government: We ask questions of clients, and the government, listening in secretly, gets the answers.

We may learn more, as our case against Bush and the NSA proceeds. But we, like other Americans, may never know the full extent of the surveillance launched by this administration. Like the secret prisons and torture centers that shame our nation, and the secret executive orders that overwrite the Constitution, the secret eavesdropping that undercuts our legal system will not end until Americans, once again, have the decency to be shocked.

For Sister Dianna and other victims of torture, this moment represents what she calls “a choice between courage and cowardice, human decency and depravity.” Inside the Pentagon, officials are arguing with Vice President Dick Cheney and some of his aides about a whether a new set of Defense Department guidelines for interrogating suspected terrorists should prohibit the “cruel, humiliating, and degrading” treatment of prisoners. In the Congress, Sen. John McCain, with support from 89 colleagues, is pushing a separate measure to ban cruel, inhuman or degrading treatment of any detainee in U.S. custody — against veto threats from the White House and fierce opposition from Cheney and his new chief of staff, David Addington, who are maneuvering to exempt clandestine CIA activities from oversight. And reporters have uncovered a network of “black sites” in Eastern Europe and elsewhere — secret detention camps run by the CIA, where suspects are being held and brutally interrogated.

The idea that torture could be so publicly defensible — and the news that the United States is maintaining secret facilities in former Soviet-era prisons for torturing nameless and disappeared people — fills me with shame and horror. And while it’s encouraging that John McCain, who was himself tortured as a prisoner of war, wants to make it illegal to strap naked prisoners to boards and hold them under water, electrocute them or mock-execute them, it’s profoundly depressing that the discourse about torture has come to this point.

Cruelty in war may be universal: but an international code acknowledging limits on cruelty has been, until now, a fundamental part of civilization. The Geneva Conventions, adopted in 1949, put it plainly: Even in war, all persons are to be treated “humanely”; “cruel treatment and torture and outrages upon personal dignity” are prohibited. The United States and countries from Afghanistan to Zimbabwe, 192 in all, have agreed that freedom from torture, degradation, and cruel or inhuman treatment is one of the most basic of human rights, transcending national boundaries. As Judge Irving Kaufman of the 2nd Circuit Court of Appeals ruled in 1980 — in a landmark case we at the Center for Constitutional Rights brought in a U.S. court against the Paraguayan general who tortured Joel Filartiga to death — “for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.”

The Filartiga case set a precedent that torturers anywhere in the world can be held accountable for their crimes. With the Center for Constitutional Rights and lawyers for other human rights organizations, I have represented victims of torture from Bosnia to Algeria, from East Timor to Tiananmen Square: their stories still haunt me and bring me to tears. I’m unable to forget a terrorized Kanjobal Indian boy from Guatemala, who was just 8 when army troops came to his village and rounded up all the men, shackling and hooding them. The boy told me how he’d been forced to watch as his father was hanged from a tree and cut apart alive. The principle that all people should be safe from torture — that there are universal laws that make us human — has been at the very heart of our work.

Since 9/11, I’ve found myself swept up in defending basic human rights and the rule of law against a relentless onslaught by the Bush administration. We’ve brought suit on behalf of 500 nameless “John Doe” prisoners held at Guantánamo in defiance of the Geneva Conventions; we’ve fought the indefinite detention of American citizens; we’re challenging the Defense Department and private contractors over the horrendous abuses at Abu Ghraib. We’ve uncovered terrible stories about cruelty and torture carried out by our country, like that of Maher Arar, an innocent Canadian citizen kidnapped and “rendered” to Syria by American forces, who was kept an underground cell for over 10 months and beaten for weeks on end with a thick cable. I represented three young men from England who were released from Guantánamo when it was finally proved they’d made false confessions — after being stripped, hooded, isolated, chained to the floor for 12 hours at stifling temperatures and threatened by snarling dogs.

Yet despite victories in court, and rising political outrage from Republicans as well as Democrats, military lawyers and State Department officials as well as human rights activists, it now seems that administration hard-liners are digging in.

How did we get to this point? Because the United States is bound by the Geneva Convention governing prisoners of war, and by the 1987 Convention Against Torture with its prohibitions against torture and cruel, inhuman and degrading treatment, McCain’s legislation should not even be necessary.

But after 9/11, Attorney General Alberto Gonzales (at that time White House counsel to the president) and others gave their legal opinion that prohibitions on “cruel, inhuman, and degrading treatment” didn’t apply to noncitizens being held by the United States outside the United States. Then, because torture, even outside the United States, remains a crime, they redefined “torture” so narrowly that almost all violent and coercive methods of interrogation were excluded. Then, because of the U.S. criminal statute making violations of the Geneva Conventions a crime, they insisted that the conventions did not apply to anyone they termed a suspected al-Qaida member.

These opinions were an attempt to provide legal cover so that U.S. personnel and contractors could engage in coercive interrogations without fear of criminal prosecution. They were an attempt to show that the United States did not really engage in torture and was not really violating conventions governing cruel, inhuman or degrading treatment. Once the abuse scandals broke, and the reality of what was being done to prisoners emerged, officials began to talk about lack of clarity in the opinions, or a “failure of supervision” that led to “excesses.”

But this administration is now openly and baldly saying that it claims the right to torture, at its discretion. All the fictions that sustained the war on terror — that abuses were one-time mistakes by low-level grunts; that the rules about human rights weren’t clear; that soldiers didn’t understand the parameters when they beat and humiliated and tortured prisoners — have been replaced by a clear declaration: The United States is going to torture people as it sees fit, to subject them to cruel, inhuman and degrading treatment wherever and whenever it decides to.

Human rights activists around the world who live under repressive regimes have long looked to this country for leadership; our government, flawed as it is, has launched crusades against human rights abusers abroad and helped prevent terrible suffering by demanding that torture stop. Now we are facing a new world: one in which the most powerful country on the planet publicly declares itself above the laws that have protected individuals everywhere from disappearance, torture and murder. It is a sad and dark moment, in which the hostis humani generis, the enemy of all humankind, speaks with the voice of the United States government.