black flag guantanamo bay and the sn derek gregory geografiska annaler. series b, human geography,...

8/11/2019 Black Flag Guantanamo Bay and the Sn Derek Gregory Geografiska Annaler. Series B, Human Geography, The - U

1/24

The Black Flag: Guantnamo Bay and the Space of Exception

Author(s): Derek GregorySource: Geografiska Annaler. Series B, Human Geography, Vol. 88, No. 4 (2006), pp. 405-427Published by: Wileyon behalf of the Swedish Society for Anthropology and GeographyStable URL: http://www.jstor.org/stable/4621537.

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2/24

THE

BLACK

FLAG:

GUANTANAMO

BAY

AND

THE

SPACE

OF

EXCEPTION

by

Derek

Gregory

Gregory,

D.,

2006:

The black

flag:

Guantanamo

ay

and the

space

of

exception.

Geogr.

Ann.,

88 B

(4):

405-427.

ABSTRACT.

heAmerican

rison amp

atGuantanamo

ay

has

oftenbeendescribed

s a lawless

space,

and

many

commentators

havedrawn n the

writings

f

GiorgioAgamben

o formalize

his

description

s a

'space

of

exception'.Agamben's

ccountof

the

relations etween

overeign ower,

aw andviolencehas

much

o

offer,but t fails orecognizehecontinuedalienceof thecolonial

architecturesf

power

that have been invested n Guantinamo

Bay,

is

insufficiently

ttentive o

the

spatialities

f international

(rather

han

national)

aw,

and s

unduly essimistic

bout

he

pol-

itics of resistance.

Guantinamo

ay depends

n the mobilization

of two

contradictoryegalgeographies, ne

that

places heprison

outside he UnitedStates to allow the indefinite etention

f its

captives,

and

another

hat

places

the

prison

within

the United

States n order o

permit

heir coercive

nterogation'.

detailed

analysis

f these

nterlocking

patialities

as

both

egal

textsand

politicalpractices

is crucial

or

anycrique

f the

global

war

pris-

on. Therelations etween awandviolencearemore

omplex

and

contorted

hanmost accounts

allow,

and sites

like

Guantinamo

Bay

needto

be seen not as

paradigmaticpaces

of

political

mo-

dernityasAgamben rgues) utrather spotential paceswhose

realization

s an

occasion

or

political truggle

not

pessimism.

Key

words:

aw, torture,

pace

of

exception,

waron

terror',

war

prison

Even at this

hour,

beads

of

sweat crawled

acrosshis

scalp.By

the time the sun

was

up

it

wouldbe another

ay

for the

black

lag,

which

the

Army

hoisted whenever he

temperature

rose

beyond

reason.

An

apt symbol,

Falk

thought,

ike some

rectangular

ole

in the

sky

thatyou mightfall into,neverto reappear.A

national

banner

or

Camp

Delta's

Republic

of

Nobody,populated y

640

prisoners

rom

or-

ty

countries,

none of

whom

had the

slightest

idea how

long they

would be here.

(Dan

Fesperman,

ThePrisoner

of

Guantdnamo)

Bare life

In

the

earlymorning

of 10 June2006 three

prison-

ers held at themilitarydetention acilityat the US

NavalStationat Guantinamo

Bay,

Cuba,

wo

from

Saudi Arabia and

one from

Yemen,

were found

dead

n

their

cells.Although

he

threemen

hadbeen

detainedwithout

rial or several

years

and

noneof

them

had

court

cases

or

military

commissions

pending

none

of themhadeven been

charged),

he

commander

f the

prison

dismissed heirsuicides

as

'not

an act

of

desperation

utan act

of

asymmet-

ric warfare

gainst

us'.

Although

he threemen had

been on

repeated

unger

trikeswhichendedwhen

they

were

strapped

nto restraint hairsand force-

fed

by

nasal

ubes,

he

US

Deputy

Assistant

Secre-

tary

of State for

Public

Diplomacy

described

heir

deathsas

'a

PublicRelationsmove to

draw

atten-

tion'

-

to

what,

she did not

say

-

and

complained

thatsince detaineeshadaccessto

lawyers,

eceived

mail andhad

the

ability

o write o

families,

'it was

hardto see

why

the men had

not

protested

about

their situation'.

Althoughby presidential

decree

prisoners

at

Guantainamore

subject

o indefinite

detention ndcoercive nterrogation hiletheyare

alive,

when President

George

W. Bush

learned

of

the three deathshe

reportedly

tressed he

impor-

tanceof

treating

heirdeadbodies

in

a humane nd

culturally ensitivemanner'.I

It s

in

thefaceof contradictionsuchas these hat

many

commentatorsave

seen

Guantnamo

Bay

as

an iconic

example

of that

paradoxical pace

which

GiorgioAgamben

describesas 'the state

of

excep-

tion'.

In

what ollows examine his

characterization

in

detail,

and

pay particular

ttentiono the tortured

geographieshatwind n andout of thewarprison.

I

begin

witha

summary

ccount

f

Agamben's rgu-

ment,

butwhile

I

will be criticalof a number

f

his

formulations

intend his article

primarily

s a cri-

tique

of theBushadministration's

olitical heology

rather

han

Agamben's oliticalphilosophy.

Agamben's

account

turns

on the rotationsbe-

tween

sovereignpower,

he

state of

exception

and

bare ife.

2

It is a

sophisticated

hesis,

drawing

n

a

heterodox

roup

of

European

hinkers

Benjamin,

Foucault,

Heidegger

nd

Schmitt and

relying

on

a

seriesofargumentationketchesplucked romclas-

sical,

medieval nd

early

modem

aw

to

establish

he

modalities f

sovereign

ower.

ts

pivot

s thedismal

@

The author 006

405

Journal

ompilation

2006

Swedish

Society

or

Anthropology

nd

Geography

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/24

DEREK GREGORY

figure

of homo

sacer,

a

positionAgamben ays

was

conferred

by

archaicRoman aw

upon

those who

couldnot be sacrificed

ccording

o

ritual

because

they

were

outside

divine aw: heirdeaths

wereof

no

value

o the

gods)

butwho

couldbe killedwith

m-

punity(becausethey were outsidejuridical aw:

their

ives wereof no value

o

their

ontemporaries).

Critics

have

treated

Agamben's eading

as

partial

and

partisan:extravagant'ccording

o one and 'a

myth'

according

o another.

Buthis

purpose

s nei-

ther

textualnor historical.

nstead,

he

projects

his

figure

nto the

present,

s a

sortof

cipher

or

bearer

of what

he

calls 'bare

ife',

by making

wo

moves.

First,

Agambenargues

hathomosacer

emerges

at the

point

where

sovereignpower suspends

he

law,

whose

absence hus alls overa zone

not mere-

ly of exclusion but of abandonment. he produc-

tion of

such

a

space

-

the state of

exception

-

is cen-

tral to

Agamben's

accountof

modem

biopolitics.

This

space

is

produced hrough

a

speech-act,

or

more

accurately

decision n

the sense of 'a cut in

life',

that

s

at

once

performative

nd

paradoxical.

It is

performative

ecause t drawsa

boundary

e-

tween

politically

qualified

ife and

merely

existent

life

exposed

andabandonedo violence:

bare

ife'.

'However

sacred

man

is,'

Benjamin

wrote in his

Critique of

Violence,

'there is

no

sacredness

in

his

condition,n hisbodily ife vulnerable o injuryby

his

fellow

men'.

4

If

this

remark

s read as

bodily

life

madevulnerableo

injury

through

sovereign

decision)

then it

becomes

clear thatbare

ife

is

at

once

'immediately oliticized

but

nevertheless

x-

cluded

rom

he

polis'.

5

The

cutthat

eversbare

ife

from

politicallyqualified

ife

is

paradoxical,

ow-

ever,

and

all

formsof life are

thereby

made

precar-

ious,

because he

boundary

t

enacts s

mobile,

os-

cillating:

n

a

word

(Agamben's

word)

indistinct.

This s

necessary

not

a

contingent

ondition,

more-

over,

and

crucially

affects both time and

space.

First,

he

exception

mplies

a non-linear

emporal-

ity:

'The

exception

does

not subtract

tself

from he

rule;

rather,

he

rule,

suspending

tself,

gives

rise

to

the

exception

and,

maintaining

tself in

relation o

the

exception,

irstconstitutes tself

as a

rule'. Sec-

ond,

the

exception literally

hat which is

'taken

outside' is effected

through

a

distinctive

patial-

ity.

For

the

exception

'cannotbe included n

the

whole of

which

it is

a

member

and

cannot

be a

memberof

the

whole

in which t is

always

already

included'.The

mapping

of such a

spacerequires

topology, Agamben

concludes,

because

only

a

twisted

cartography

f

power

s

capable

of

folding

such

propriety

nto such

perversity.

Second,

Agamben

argues

hat n

the

contempo-

rary

world

the state of

exception

has become

the

rule.

Writing

while

Hitler's

armies advanced

on

Paris,

Benjamin

had

warned that 'the state

of

emergency

n which

we live is not the

exception

but therule',andAgamben ndorsesandenlarges

this claim.

7

Although

he

notes

that

concentration

camps

irst

merged

n

colonial

spaces

of

exception

in

Cuba

and

South

Africa,

he

passes

over

hese

(and

the colonial architectures f

power

that

produced

them)

o focus on Nazi

concentration

amps

and,

n

particular,

uschwitz.

He

treats he

concentration

camp

as 'the

materializationf the state of

excep-

tion',

'the

pure,

absoluteand

mpassable

iopoliti-

cal

space'

n which

uridical

ule

and

bare

ife

enter

into

'a

thresholdof

indistinction',

hrough

which

'lawconstantlypassesover into factand factinto

law,

and n which the

two

planes

become indistin-

guishable'.

Unlike

Foucault,

who identified

the

Third

Reich

as a

paroxysmal

pace

in which

sov-

ereign power

and

biopolitics

coincided,

however,

Agamben

nsists

that

none of

this is a

rupture

rom

the

project

of

modernity.

On the

contrary,

is

nar-

rative s

teleological,

and

he identifies

he

camp

as

'the hidden

paradigm

f

the

politicalspace

of mo-

dernity',

and

suggests

hat

ts

operations

ave

been

unfurled o

such a

degree

that

today,through

he

multiplicationf thecampas a carceralarchipela-

go,

the stateof

exception

has'reachedts

maximum

worldwide

deployment'.By

this means hat

sover-

eign power

has

produced

both

an

intensification

and a

proliferation

f bare ife.

If

this

seems

exor-

bitant,

Agamben

s

perfectly

undeterred.The

nor-

mative

aspect

of law can

thus

be

obliterated

nd

contradicted

with

impunity,'

e

continues,

hrough

a

constellation

of

sovereignpower

and state vio-

lence

that nevertheless

till

claims

to

be

applying

the law'.

In

such

a

circumstance,

e

concludes,

he

camp

has

become

'the

new

biopolitical

nomos of

the

planet'

and 'the

juridico-political

ystem

[has

transformed]

tself into a

killing

machine'.

As

Agamben

has

developed

this

critique

t

is,

above

all,

the

'war

on

terror'

hat

has come

to bein

his

sights.

He

argues

hat

he

locus

par

excellence

of this new stateof

exception

s

the

US NavalSta-

tion

at

Guantainamo

ay,

where

rom

January

002

men and

boys captured

during

he

US

invasionof

Afghanistan

ave

been

imprisoned.

He draws

par-

allels between

the

legal

statusof

prisoners

n

this

camp

and

prisoners

n

Auschwitz: heir

situations,

so he

says,

are

formally

-

'paradigmatically'

equivalent.

risoners

f a war

on terror

whoarede-

niedthestatus f

prisoners

f

war,Agamben

rgued

406

@

The author

006

Journal

ompilation

2006

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Society

or

Anthropology

nd

Geography



4/24

THE BLACK

FLAG:

GUANTANAMO

BAY AND THE SPACE OF

EXCEPTION

that

their

egal

status

s erased.

They

are not

legal

subjects

but

legally

unnameable ndunclassifiable

being[s]',

'the

object

of a

pure

de facto

rule'

or

a

'raw

power'

whose modalities

are

'entirely

re-

moved rom

he aw and rom

udicialoversight'.

n

the detaineeat Guantinamo,he concludes,'bare

life

reaches ts

maximum

ndeterminacy'.

Law,

violence and

the

space

of

exception

Agamben

often

refersto

the state of

exception

as

the

space

of

exception,

but its

spatiality

has re-

ceived little sustained

analysis.

Indeed,

Michael

Dillon

has

argued

hat:

The

topology

of

sovereignpower

s

not

in

fact

a spaceatall.It is a dividingpractice.As such

it does work.

That

work

s

not

simply

or

even

primarily,

owever,

o

command he domain

of

the inside

of

law

and

of order.

Rather,

t is

to effect

a

passage

between nsideand

outside,

law andviolence...

10

Dillon

is

I

think

correct

apart

romhis

first

sen-

tence.

Conceptions

f

space

need not be limited o

the

containermodel

thathe

rejects,

and

I

prefer

o

treat

pace

as a

performance,

doing,

because

only

in thiswaydo I think t possibleto show how the

passages

between nside and

outside,

aw

and

vio-

lence,

are

effected.

In what

follows,

I

trace

he

convolutions

f 'in-

side'

and

'outside'

hrough

he

instruments

f law

and

violence.

Agamben

argues

hat he

space

of ex-

ception

s

typicallyproduced

hrough

he declara-

tion

of

a

state of

emergency

that

becomes the

ground

hrough

which

sovereign

power

constitutes

andextends

tself.

Three

days

after he terrorist t-

tacks on the

Pentagon

and

the

WorldTradeCenter

on 11

September

001,

PresidentBush

declared

a

National

Emergency by

reason

of

[those]

attacks

andthe

continuing

nd

mmediate hreat

of further

attacks n the

United

States'.This

was

followed

by

a further

eclaration n 23

September

001 to

deal

with 'the unusualand

extraordinary

hreat o the

national

security, oreign policy

and

economy

of

the

United

States'

by 'grave

acts of terrorism nd

threatsof

terrorism ommitted

by

foreign

terror-

ists'. The

emergency

as

been

renewed

n

eachsub-

sequent

year,

and

Agamben uggests

hatBush 'is

attempting

o

produce

a situation

in

which the

emergency

ecomes herule': nwhich

provision-

al

and

exceptional

measures'are transformednto

'a

technique

of

government'.

n

fact,

however,

he

cascade

of national

mergencies

id not

begin

with

9/11.

Bushhas continued

no

less thanseven

previ-

ous

National

Emergencies

nddeclared

ight

oth-

ers. For

the United

States,

t

seems,

and

despite

he

language

used

to

proclaim

hem,

national

mergen-

cies arenotso 'unusual ndextraordinary'fterall.

But what

attracts

Agamben's

attention,

and

what

distinguishes

he double

emergencies

declared

n

September

001,

is their

proximity

o

a

supposedly

new

kind of war

(the

'war

on

terror')

andthe

legal

formularies

hathave

been mobilizedaround

t.12

Yetthese

emergencies

nd

he war hat

hey

have

been

used

to

license involve

a

spatiality

hat

is

largely

foreign

to

Agamben's

account.

His

brief

history

of

the state of

exception

n

Europe

andthe

United States

s

shaped

by

the

exigencies

of

war:

the AmericanCivilWar, he Franco-PrussianWar,

the First

World

War

and he Second

World

War.But

his

focus

is

on

suspensions

of

national aw

during

statesof

emergency

declared

by

France,

Germany,

Italy,

Britain

and the

United States. The connec-

tions between

sovereignpower

and

he

state

of

ex-

ception

are thus

always

framed

by

a

single

state,

and

the transnational

mplications

eceive

ittle

at-

tention.

13Yet

most of the

emergencies

nd

'excep-

tionalmeasures'

hathave

punctuated

ush's

pres-

idency

old thenational nto hetransnational.

hey

address ther tates Afghanistan,Cuba, ran, raq,

Libya,

Macedoniaand

Serbia,

Syria,

and Zimba-

bwe

among

hem whose actions

have,

at

one

time

or

another,

eenheld

to

pose

a

threat o

the

national

security

and

foreign

policy

of

the

United States.

The 'war

on

terror'

has

accentuated he

political

and

juridical

folds between the

nationaland the

transnational,

ut this

process

was

underway ong

before

9/11,

and the relations

between

sovereign

power,

aw and

spatiality

ave

been

complicated

n

two crucial

ways

that

bear

directly

on

Guantinamo

Bay.In

the

first

place,

the

Westphalian

model of

sov-

ereignty

has been

compromised

s

states have

in-

creasingly

asserted

prescriptive urisdiction

be-

yond

theirborders.

4

Legal

scholar

Kal

Raustiala

argues

hat

sovereignty

has

become

progressively

unbundled rom

territoriality'.Although

extra-

territoriality

s central o the

prosecution

f the

'war

on

terror',

American

attempts

o

decouple

aw

and

location

have

a much

ongerhistory

and

do

not

de-

rive

uniquely

romthe

global

assertion f

military

force. Someof them haveaddressed ransnational

economicactivitiesand criminal ransactionshat

have effects

within

the United

States; indeed,

claims

ike this are

made

n

mostof thedeclarations

@

The

author

006

407

Journal

ompilation

2006 Swedish

Society

or

Anthropology

nd

Geography



5/24

DEREK

GREGORY

of National

Emergency.

Others

haveextended

on-

stitutional

rotections

o

citizens

and

in

certain

ir-

cumstances)

liens

beyond

he

borders f the Unit-

ed

States;

one of the central

questions

posed

by

Guantinamo

Bay

concerns

he

reachof US

federal

law and heaccessofprisonersoUS courts o chal-

lenge

theirdetention.

That his is

indeed

a

question

bears

emphasis.

The Bush

administration

as re-

suscitated

he

doctrineof

the

unitary

xecutive,

n

which the

President's

actions

as

commander-in-

chief are

supposedlybeyond

he

law.

This

perverse

reading

of

the

Constitution oldsthat he executive

can

override

both the

judiciary

andthe

legislature.

As

the

profoundly

onservative

urist-cum-philos-

opher

CarlSchmitthad

t,

'Sovereign

s he who

de-

cides the

exception':

andBush

has insisted hat

he

is 'the decider'.But national mergenciesand the

specialpowers

hatderive rom

heir

proclamation

cannot

be

reduced o

a

decisionism;

neitherdoes

the

juridical

process meekly

fold

its tent

when it

hears

the martial drums of the commander-in-

chief.

As

Amy

Bartholomew

rgues,

a

succession

of

legal challenges

in US courts has shown that

'law

will

not

willingly

abdicate ts role to

a

stateof

exception

andwill

continue o

act

as

an

obstacle

o

the

arbitrary uthority

f the executive

branch'.'15

In

the second

place,

nternationalaw also mod-

ulates he actionsof the UnitedStates.Thecompli-

cated

spatiality

hat

Agamben

attributeso

the

(na-

tional)

state

of

exception

is

compounded

by

the

spatialities

of international

aw,

which

by

its

very

nature s

decentred,

without

a

unitary

overeign

o

ground

or

guarantee

ts

powers;

ts

provisions

are

distributed

hrough

a

congeries

of

conventions,

treaties

and

organizations.

For this

reason,

nine-

teenth-century

egal philosopher

John

Austin de-

clared

hat

nternational

aw is not

really

aw

at

all:

laws could

only

be

'properly

o called'

f

they

were

'commands

of a

sovereign',

which made interna-

tionallaw

merely

'law

by

close

analogy'.

16

As I

will show

below,

the Bush administration ould

clearly

like to have the United States

regarded

s

the

global sovereign,

and it has

repeatedly

an-

nounced

hat ts

prosecution

f

the

'war

on terror'

will notbe

hamstrung y

what t

views as outmoded

legal

protocols.

When he

was

Under

Secretary

f

Defense for

Policy,

Douglas

Feith declared

that

nothing

n the

Constitution

equired

he President

to seek

the

'approval'

f

non-Americans efore

act-

ing

to

protect

heUnitedStates.This

may

have

been

rhetorically

ffectivebut t wasalso

thoroughly

is-

ingenuous;

t reduced

nternational

aw to another

decisionismwhen Feith

knew

very

well

that nter-

national

aw

imposesobligations

ather

han

mere-

ly

invites

approval.

This

presumably

xplainswhy

he vilified

legal

ines of attack'

s

a formof

'asym-

metric

warfare'

sic)

deployed

o constrainAmer-

ica's

'global

freedomof

action'.17

But

legal

con-

straints n the 'waronterror'werenot so manyex-

ternal

mpositions

nd

rritants;

hey

wereendorsed

(and

vigorously

upheld)

by

law

officers

andothers

within the

State

Department

nd

even

the Penta-

gon.

Although

Bush

claimed hat

he

hadthe

power

to

suspend

he GenevaConventions

n

prosecuting

the

war

n

Afghanistan,

or

example,

he electednot

to do

so;

instead,

he

asserted hat

hey

did not

apply

to those

ighting

or

al-Qaeda

r

the

Taliban.Yethe

memoranda

xchanged

between

the

Departments

of Justice

and

Defense

and the State

Department

makeit plainthat Bush's actionswere notunder-

taken without

acing

down

a

series of

legal

chal-

lenges.

Other

provisions

of

international

aw

are

non-derogable:

in

particular,

the

prohibition

against

orture

s an absolute

right

to which there

areno

exceptions.

18

Here, oo,

as I will

also

show,

the Bush administration

ngaged

n a

frenzy

of le-

gal

argument

and

egerdemain)

n

order

o under-

write

he 'coercive

nterrogation'

f

prisoners

held

at Guant

namo and other

sites in the

global

war

prison.

Severalcriticshavedescribed he Bush admin-

istration

as

waging

'a war on

law',

and the Presi-

dent

plainly

shares

a Feith-based

mpatience

with

its

scruples.

International

aw?'Bush

responded

o

a

reporter

n

December

2003. 'I'd better

call

my

lawyer.

don't know

what

you're alking

about

by

internationalaw'.19

More

particularly,

t has be-

come common o

treatGuantinamo

Bay

as a

'law-

less

place'

that

s

'beyond

he reach

of

national

nd

international

aw';

a

place

where

sovereignpower

hasbeen

mobilized outside

he

ruleof

law';

a

wild

zone

subject

o 'a lawless

and

prerogatory

ower',

where'the law is

effectivelysuspended

n both ts

national

and

nternational

orms'andwheresover-

eign power

is

extended

in

excess of the

law';

a

'law-free

one';

anda

legal

'black

hole'.

Agamben

himself describes the

state of

exception

as

'a

kenomatic

state',

a vacant

space

limned

by

the

'emptiness

f law'.

20

This

has

become

a common-

place

critique

on

both

sides of the

Atlantic,

but

I

want o

drawon

the

previousparagraphs

o

qualify

its

rendering

f the

global

war

prison

n three

ways.

First,

I seek to

expose

the architecturesf colonial

power

which

Agamben

more or less

ignores,

be-

cause

the shadows hat allover the

contemporary

space

of

exception

are not limited to thoseof

the

408

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ompilation

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or

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nd

Geography



6/24

THE

BLACK FLAG:

GUANTANAMO

BAY AND

THE

SPACE

OF

EXCEPTION

Twin

Towers

of

the World Trade Center

or the

chimneys

of Auschwitz:the imbrications f law

and

violence

which

shape

he

colonial

present

have

a

longer genealogy

that

needs to

be

recoveredas

part

of the

process

of

critique.

Second,

and

ollow-

ing directly rom heseconsiderations,addresshe

international imensionsof law and violence that

Agambenglosses

over,

not because

I

think these

functionas

a

deus

ex

machinawhose activation

an

rescue homines

sacri

from their

fate

but,

on the

contrary,

ecause

nternationalaw

-

in

its

colonial

past

and

in

our

colonial

present

marks

a

crucial

site

of

politicalstruggle.Thirdly,

his

in

its turn

e-

quires

a

careful onsideration f the

possibilities

of

resistance hat

is

largely

absent

from

Agamben's

account,

because

here s

nothing

neluctable bout

theproduction rproliferationf spacesof excep-

tion.

These

claims run

throughout

he

discussion

that

follows,

where

I

triangulate

Guantinamo'

from hree

points.

First,

plot

thecontours f Euro-

American

xceptionalism

n

order o

mark

he co-

lonial,

colonizing gestures

through

which it

has

beenboth

authored

nd

authorized;

econd,

I

rattle

the

colonialchain

hat

yokes

the law

to

violence

in

Guantinamo's

ast; inally,

trace he detailed e-

gal

and

para-legal

roduction

f

Guantinamo

s

a

staging-post

or the

contemporary

war

on

terror'.

Enroute,twillbecomeclear hatBushdoesindeed

knowwhat internationalaw' s about and hathe

has

repeatedly

alled

his

lawyers.

Euro-American

exceptionalism

In

their

attempt

o

unravel

he connections etween

what

they

call

'our

brutal

global

state of

war'

and

'the

age

of

Empire',

Michael Hardtand

Antonio

Negri

begin

with he

politico-juridical

ntersections

between wo

exceptions,

ne

European

nd he

oth-

erAmerican.

1

These

ntersections

re

also efface-

ments,

however,

and

to show

why

this is

so

I

want

to revisit

Agamben'sreading

of the work of Carl

Schmitt

o

drawout the

shadowsof colonial

power

cast

by

thesetwo

exceptions.

Partof Schmitt's

pur-

pose

was

to show

hat n

Europe

n

the sixteenth nd

seventeenth

enturies

he

theological-moral

model

of the

'just

war'

sanctioned

y

the medieval

Chris-

tian

Church

gainst

nfidels

yielded

to the secular-

juridical

model

of

a

regulated

ndrationalizedwar

between

formallyequivalent overeign

states. In

this

economy

of death

warring overeigns

were

re-

quired

o

recognize

eachotheras

legal

equals,

and

on the

field of battle heir

subjects

were

obliged

to

recognize

each

other

as

subjects.

There

were

thus,

at least in

principle,

mutually

cknowledged

imits

to

enmity

and

violence,

and

within

his

space

the

space

of the

us publicumEuropaeum

sovereign

poweroperated,

o Schmitt

claimed,

hrough

nor-

mative

egulation.

He

argued

hatunlimited

nmity

andunrestrainediolence werenowbracketed nd

projected

beyond

he line' into the

non-European

(and

specifically

he

'New')

world.

As William

Ra-

sch

puts

it,

'Europe

ublimate[d]

ts

animality

by

establishing

he

Americas

as an

extralegal

one

in

which bestial deeds

[could]

be

acted out far

away'.

Schmitt dentified his

zone

of

alterity

the

space

supposedly

vacantfor the

play

of colonial

power

-

with

'the state of nature

n which

every-

thing

is

possible'

and

also with the

state

of

excep-

tion which 'bases tself

in

an

obviously

analogous

fashion on the idea of delimited, ree andempty

space'

understood

as a

'temporary

and

spatial

sphere

n

which

every

law is

suspended'.

For

Ag-

amben,however,

his was

no

analogy.

nstead,

he

state

of nature nd he stateof

exception merge

as

'but

two sides of

a

single

topological

process

in

which whatwas

presupposed

s

external

the

state

of

nature)

now

reappears,

s

in

a

M6bius

strip

or

a

Leyden ar,

n

the

inside

(as

stateof

exception)'.

22

This s a

contentious ut

highly

effective

iction,

a

celebration f

a

particular

onstellation

f

politi-

cal andeconomicpower,andSchmitt'sworkhasto

be

approached

iththe

utmost

ritical

vigilance

in

relation o both

Europe

and

'not-Europe').

3

His

central,

elegiac

point

was

that he line

-

a

colonial

meridian

had

slowly

dissolved

by

the

early

wen-

tieth

century,

nd

hat

he wild zones

of

colonial

vi-

olence had

appeared

within

the ruins

of the

Euro-

pean

order.Whathad

happened,

nd

according

o

Agamben

s still

happening,

s

that

he

'juridically

empty'

space

of the state of

exception

has trans-

gressed

its

spatiotemporal

oundariesand

now,

overflowing

outside

them,

is

starting

o coincide

with the

normal

order,

n

which

everything

again

becomes

possible'.

The

dissolution of the line

should

not be read

as a

reversion o Hobbes'

state

of

nature,however,

but

rather s the

emergence

of

the state

of

exception

as

what

Agamben

ees as 'the

permanent

tructure f

juridical-political

e-local-

izationand

dis-location'.

Whatwas once confined

is

now loose in the world.

24

Two

conclusions ollow from his

rough

outline

that

bear

directly

on the

production

f

'Guantaina-

mo'.

First,

by implication,

he

space

of

normative

regulation

was

producedby European

tates as-

serting

their

sovereignty

over the world

beyond

the line

and

co-producing

hrough

hoseassertions

@

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7/24

DEREK GREGORY

a

vast colonial

space

of

exception.

But its

'topog-

raphies

of

cruelty',

as Achille Mbembe alls

them,

cannot be reduced to and hence

derived from

a

space

of

absolute

lawlessness.

25

Colonial wars

were

raw,ruthless, eral;

but the violence of

colo-

nialismwasnotconfined o warfare.The law was

intimately

nvolved

in

the modalitiesof colonial

violence,

and

nternational

aw

bears

he

marksof

those colonial

predations;

ts

locus

is drawn

not

only

through

relations

of

sovereign

states,

there-

fore,

but also

through

what

Peter

Fitzpatrick

alls

'the colonial domination

of

people

burdened

by

racialdifference'.

26

This

is not a

peculiarity

f

in-

ternational

aw,

which shares

n a

generalizedgal-

lery

of

imaginative eographies

where he

other

s

markedas

irredeemably

other,

and this cultural

carapaces extremelymportant. he uridicaland

the cultural

operate

together,

and the

racializa-

tions that

they jointly

license have been

given

a

particular

orce

by

President

Bush'sdeclaration f

the 'war on terror' as a war of

'Civilization'

against

he barbarians t the

gates

(and

within the

walls).

This

invocation of

an

indivisible

global

civilizationworks o makethe

exception

under-

stood

as

a zone of indistinctionbetween the law

and

its

suspension

-

invisible

by conjuring

a

shape-shifting,

nomadic

enemy

who

inhabits he

shadowsbeyond he human.This is a strategyhat

does not

so

much

sense the

presence

of

the

enemy,

the

midnight scurrying

n

the

skirting-board,

s

produce

the

enemy

through

he classificationsof

its

own

unnatural

istory.

Schmitt

himself warned

that to confiscate he word

'humanity'

and mobi-

lize

it

to

wage

war

would

mean

'denying

he

ene-

my

the

quality

of

being

humanand

declaring

him

to

be

an

outlaw

of

humanity'.By

this

means,

he

continued,

warcan 'be driven

o

the most extreme

inhumanity'.

n

short,

to

fight

n

the name

of

hu-

manity

does not

eliminate

enmity',

as

Andrew

Norris observes:'it

only

makesone's

enemy

the

representative

r embodiment f the inhuman'.

27

These

reductions,

iven

form

hrough

oth he law

and

its

suspension,

reactivate

a

colonial

past

in a

colonial

present:

These fine ethnic distinctions

effectively

re-

vive a

colonial

economy

n which nfrahuman-

ity,

measured

gainst

he benchmark f health-

ier

imperial

standards,

diminishes human

rights

andcan deferhuman

recognition.

The

native,

he

enemy,

he

prisoner

ndallthe other

shadowy

third

hings' odged

betweenanimal

andhuman an

only

be held accountable nder

special

emergency

rules

and

fierce martial

laws. Their

owly

statusunderscores he fact

that

hey

cannot

be

reciprocally

ndowedwith

the same

vital

humanity

njoyedby

theirwell-

heeled

captors, onquerors,udges,

execution-

ers andotherracialbetters.28

Second,

by

extrapolation,

he United States has

sought

not

only

to

displace

'old

Europe'

Rums-

feld's dismissive

phrase)

but

also

to

arrogate

o it-

self

the

power

to

drawnew horizons

of

visibility

and to constitute

tself 'as the

sovereign

who

tran-

scends he aw

and

husassures ts

meaning

and

en-

forcement'.

n

seeking

to

occupy

the

space

of

the

globalsovereign,

his

strategy

endersnternational

law as

'normal

aw',

'law

properly

so

called'

in

somethinglike Austin's sense, by declaringits

bracketing

or

suspension.

The

logic

articulated

through

he 'war on

terror'

hus derives

directly

from Schmitt's

political heology.

It

asserts

hat f

'internationalaw is

to

be seen as universal nd

n-

ternational

politics

as

ethical,' then,

as

Costas

Douzinas

remarks,

one

power

must

be

exempted

from ts

operations,

nd

through

ts

forceful nter-

vention

and

sovereign

interpretation

f the

law,

give

it

its

desiredseamlessness'.

t

also

gives

it its

ruthlessness,

or the humanism hat his licenses is

whatDouzinascalls a 'militaryhumanism'hatef-

faces its uncounted thersas so

many

mutebearers

of

bare ife. This

is

the

pivot

around

which

the

rad-

ical

critique

f American

Empire

urns.Whereonce

the

United

States claimed to be

exempt

from the

corruptions

of

European

forms

of

sovereignty,

Hardt nd

Negriargue

hat t nowclaims

exemption

fromthe

law

itself.And whereonce

warwas

regu-

lated,

subordinatedo international

aw,

it

is now

regulating,exploiting

the

conjunctions

between

violence andthe

law.29

Guantainamo

nd the

colonial

past

Colonialism

requently perates

nder he

mprima-

turof

law,

both

n the

past

and

(as

the

people

of

Pal-

estine and

Iraq

know

only

too

well)

in

the

present,

and ts violentassaults

on

land,

iberty

and ife

are

regularly

authorized

nd

articulated

hrough egal

formularies.

he

legislative

and

interpretive

ields,

the actionsof rulers

and

judges,

are thus suffused

withviolence.

f

their

metropolitan

peration

takes

place

n a field of

pain

and

death',

as

RobertCover

once observed

resciently,

henhowmuchmorean-

guished

s their

colonial

mode of address? f their

normal

powers

are'realized

n

the

flesh',

as

he also

410

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The author 006

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ompilation

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8/24

THE

BLACK

FLAG:

GUANTANAMO BAY

AND

THE SPACE OF EXCEPTION

remarked,

hen

how much

more

painful

is their

emergency

nvocation?

0

Guantdinamo

ay

bears he marksof these

liga-

turesbetween

colonialism,

iolenceand

he aw.

Its

modern

history

has

been

shapedby military

en-

countersbetween threeimperialpowers- Spain,

the UnitedStatesand

he

SovietUnion and

by

en-

during militaryoccupation.

Cubansrose

against

their

Spanish occupiers

three

times in

the nine-

teenth

century:

in

1868-1878,

1879-1880

and

1895-1898.

Oneof the

principal

rchitects f

thefi-

nalWar

of

Independence

as the exiled writer os6

Marti,

who

was

killed

in a

battle

with the

Spanish

army ust

one month

afterhe

returned

o the island.

It

was

one

of his

poems

that ater

provided

he

in-

spiration

or the

song

'Guantainamera'.Alarmed

y

thestrength ndsuccessof therevolutionaries,he

Spanish

military

governor

ought

to

cut

off their

support

n the

countryside

hrough

a

policy

of

reconcentracidn.

Hundreds f thousandsof

peas-

ants

were

forcibly

relocated

nto

barbed-wire on-

centration

camps

close to the towns and

cities,

where

many

(some

reports

said

as

many

as

one

half)

of

them

were

eft

to

starve o

death.An

Amer-

ican Senatorwho travelled

hrough

he four west-

ern

provinces

described

landscape

f

terrible,

er-

rifying

ndistinction:

It is

neither

peace

norwar. t

is concentration nddesolation'.Publicopinion n

the UnitedStates

was

inflamed

by press

reports

of

these

atrocities,

ut

he

desire or

military

nterven-

tion

was also

motivated

y

thoroughly

nstrumental

economicand

strategic

nterests.

n

fact the

United

States

had made

repeated attempts

to

purchase

Cuba rom

Spain

n

the

closing

decadesof thenine-

teenth

century,

nd t was

only

after he ast

of

these

offers

had

been

rejected

n

1897

that

Washington,

buoyed

by

the

rising

tide

of

public

opinion,

ound

a

pretext

and in

1898 declared

war

on

Spain.

The

ironies

multiply.

Then,

as

now,

this was an

imagewar.

Photographs

f

the

effects of

Spain's

counter-

insurgency perationsheightenedpublic

condem-

nation

of

its

oppressive

olonial

regime.

This s

the

origin

of the

apocryphal elegram

rom

William

Randolph

Hearst

o

Thomas

Remington

n

Havana:

'You

urnish

he

pictures,

andI'll

furnish

he war'.

And,

as DanielRoss

wryly

observes,

theAmerican

prize

for

its

outrage

at

Spanish

concentration

camps

n

Cubahas becomethe

right

o

run

ts own

camp

on

the same

territory'.

1

When

peace

was

concluded

ater

hat

yearSpain

relinquished

ll its overseas

possessions

but

Cuba,

farfrom

being

free,

remained nderAmericanmil-

itaryoccupation

or three urther

ears.

n

1901 the

United States

stipulated

ts conditions or

Cuban

independence hrough

provisions

set out

in

the

PlattAmendment

o

the

Appropriations

ill in

the

US

Congress

hat authorized ontinued

inancing

of the

occupation.

The

CubanConstitutionalAs-

semblyrejected heseprovisionsas an encroach-

ment

on the

independence

nd

sovereignty

of the

island,

but the United States nsistedthat

military

occupation

wouldnot

end

without heir

ncorpora-

tion into

the

constitution.

They

were

narrowly

n-

dorsed

by

the

Assembly

in

1902,

and reserved o

the UnitedStates he

right

o intervene

n

thefuture

'for the

preservation

f Cuban

ndependence'

nd,

to

that

end,

required

Cuba

to

sell

or

lease to the

United

States lands

necessary

or

coaling

ornaval

stations'.

32

Accordingly,

Guantainamo

ay

was

leased romCubanFebruary 903 'for hetimere-

quired

or the

purposes

of

coaling

and naval sta-

tions' and the United States was

permitted

to

do

any

and

all

thingsnecessary

o fit the

premises

or

use as

coaling

and naval

stations

only,

and

or

no

other

purpose'

(emphasis

added).

The lease could

only

be terminatedwiththe consent

of

both

parties

or

through

he unilateral bandonment f the base

by

the

United

States. ts central

rovision

ead

hus:

While on the

one hand

he

UnitedStates

reco-

gnizes the continuanceof the ultimatesove-

reignty

of the

Republic

of

Cubaover

he above

described reasof land

and

water,

on the other

hand he

Republic

of

Cubaconsents hat

dur-

ing

the

period

of

the

occupation y

the United

States of said areas under the

terms of

this

agreement

the United States shall exercise

complete jurisdiction

and

control over

and

withinsaid areas.

Amy

Kaplan

argues

hat

this

language

mposes

a

hierarchy

between

recognition

and

consent,

'ren-

dering

Cuban

sovereignty

over Guantinamo

Bay

contingent

on

the

acknowledgment

f the United

States,

n

exchange

or

which

Cuba

agrees

o cede

sovereignty

over

part

of the

territory

t

nevercon-

trolled'.

Many

commentators ave

argued

hat in

doing

so

the

lease

locates Guantainamo

n

an am-

biguous space

betweenthe

'ultimate

overeignty'

of Cuba

and

he

'complete urisdiction'

f theUnit-

ed

States.33

In

1959,

following

the

revolution,

he

govern-

mentof Cuba ried

unsuccessfully

o terminatehe

lease,

andsincethen thasmaintainedhat he

pres-

ence ofAmerican rmed orces on

Cuban oil

is an

illegal

occupation

as

President idel

Castro

puts

t,

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DEREK GREGORY

'a

knife n

the heartof Cuba's

overeignty').

At the

height

of

the

Cubanmissile crisis n

October

1962,

PresidentJohn F.

Kennedy

rejected

he advice

of

his

Secretary

f DefenseRobertMcNamara

o

pro-

pose

a timetable

for US withdrawal

from

Guantinamo s a quidpro quofor the removalof

Soviet

medium-range

missiles and

bombers rom

the

island.

Kennedy

also

ignored

requests

from

both Khruschev nd

Castro o return

Guantinamo

to

Cuba.The base's

perimeter

was

strengthened

s

a

symbolic

frontier

between

capitalism

and

com-

munism,

and

Guantanimo

emainedunderAmer-

ican

occupation

hroughout

he

Cold

War

and be-

yond.

Over the

years

the base

provided

ogistical

support

or US

military

nterventions

n

Cuba as

well as

the Dominican

Republic,

Guatemala,

Gre-

nada,Nicaragua ndPanama.Before hefinaldec-

ade of the

twentieth

entury,

however,

ts

role was

being

reassessed,

nd

n

1988JamesH.

Webb,

Sec-

retary

of the

Navy, thought

t

'reasonable o con-

clude

that

we

will

lose

our lease

in

Guantainamo

Bay

in

1999'.

His

conclusionwas

premature;

he

lease was

retained.From

1991

to

1994 Guantina-

mo

Bay

was

used to

provide

detention

amps

for

36000

refugees

from the

military

coup

in

Haiti

who were

denied

entry

nto the United

States,

and

again

in

1994-1995 to

imprison

21000

Cubans

seekingasylum nthe UnitedStates.Theforcedre-

patriation

of the detainees was

justified

on the

grounds

hat

hey

werenotentitled o

constitutional

protection

until

they

were at or withinthe

borders

of the United States.

34

This claim

traded on

Guantinamo's

ambiguous

ocation,

but the con-

struction f detention

amps

also

violated

he

terms

of the

lease,

which allowedthe land

to be used as

a

coaling

or

naval

tation

and,

as

I

noted

above,

for

no other

purpose'.

A

prison

camp

s an

illegal ap-

pendix

o

the

originalagreement,

nd

yet

it became

the

central

missionof the base.35

When

Kaplan

describes

Guantinamo

s 'haunt-

ed

by

the

ghosts

of

empire',

she is

surely

correct.

She also

suggests

that its

history

reveals 'a

logic

grounded

n

imperialism,whereby

coercive state

power

has

been

routinely

mobilized

beyond

the

sovereignty

of national

territory

and

outside the

rule of law'. Much

of that s accurate

oo; but,

as I

have

shown,

the base has

also

emerged

hrough

a

long process

of

legal argument,

and it

subsists

through egal

formularies bundlesof memoranda

and

minutes,

actsand

amendments,

reaties nd he

termsof thelease itself-

that,

aken

ogether,

ave

produced legal impasse:

a

stand-offbetween he

UnitedStates

which

nsists t has a

right

o

occupy

Guantinamo)

and Cuba

(which

has

declared

he

continued

occupation llegal).

For this

reason

it

seems

necessary

o add hat

he

space

of

Guantina-

mo also derives rom aw

at a

standstill. t is a

zone

of

indistinction

wherethe

legalized

and the

extra-

legalcross over nto oneanother.36

Guanta namo

nd the colonial

present

TheBushadministrationas

mademuchof the

pre-

sumptivenovelty

of the

'war

on

terror',

but

the se-

lection of Guantinamoas a

prison

camp,

the des-

ignation

of

its

inmates as 'unlawful

combatants'

and

the delineation f a

regime

of

interrogation

o

not

depart

rom hehistorical

emplates

hat

shaped

the base'scolonial

history

and

heir

mobilization f

legal protocols.In particular, leurJohnsargues

that:

The

plight

of the

Guantinamo

etainees s less

an

outcome

of

law's

suspension

or eviscera-

tion than of elaborate

egulatory

fforts

by

a

range

of

legal

authorities. The

detention

camps

are

above

all

worksof

legal representa-

tion

and

classification.

They

are

spaces

where

law and iberal

proceduralism

peak

and

oper-

ate in

excess.37

This seems

to

me

to be

exactlyright;

butwhat s

the

imperative

behind such excess? What

demands

such

an

involuted

egalismthrough

which the law

is

contorted nto ever more

baroque

distinctions?

The answer

s,

in

part,

a

matterof

indeterminacy:

the Bushadministrationid not

speak

witha

single

voice

(until

the President

poke).

For

far

from the

reactivation f the

prison camps

at

Guantanamo

signalling

he retreat f law from he field

of

battle,

there

was a

vigorous

debatebetweenthe

Depart-

mentsof DefenseandJusticeand

he State

Depart-ment over the

prosecution

f the 'waron

terror'.

Legal

advisersand

political principals

onstantly

invoked

egal

precedents

ndadvanced

egal

inter-

pretations

o

support

heirrival

claims.The

result,

as

ChristianeWilke

argues,

was that

Guantinamo

was not

placed

outside he law:

'the

applicable

e-

gal regulations

were]

too dense to

allow

such

a

claim'. But the result of these

contending

argu-

ments

-

which

eventually spilled

over into the

courts

-

was to

confine

prisoners

n what

Wilke

calls 'a

place

of

rightlessness

n a

context hat

was]

not lawless'.

38And

this

supplies

he other

part

of

the

explanation:

he Presidentand his

closest

ad-

visers were determined o treat the

prisoners

at

412

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THE BLACK FLAG: GUANTANAMO

BAY AND THE SPACE OF EXCEPTION

Guantanamo

s

legal objects

rather han

egal

sub-

jects

in

order

o

wage

the 'war on terror'

hrough

their

very

bodies.This

virulently iopolitical

trat-

egy

involved ndefinitedetention

and

'coercive

n-

terrogation'

ut,

as

I

now

show,

these

required

he

administrationo mobilizetworadicallydifferent,

contradictoryegal

geographies.

Extra-territoriality

and indefinite detention

The immediate

objective,

on

which

both

sides

seem

to have

agreed,

was

to

place

selected

prison-

ers

taken

during

he war

n

Afghanistan eyond

he

reach

of

any

federal

district

court

that

might

en-

tertain

a

habeas

corpus

petition.

A

writ of habeas

corpus

orders

a

prisoner

o be

brought

before

a

courtto determinewhethers/he has been impris-

oned

lawfully.

Congressgranted

all

federalcourts

jurisdiction

under title 28

of the

United States

Code

to

issue

such writs

to release

from

custody

prisoners

held

by

stateor federal

agencies

in vio-

lation

of the Constitution.

9

Here

the

ambiguous

status

of Guantanamowas assumed to

confer

a

distinct

advantage

over other sites that had

been

considered

o

be similar

o the

US bases on

Mid-

way

andWake.These were formerPacific Island

Trust erritories dministered

y

the UnitedStates

that were includedwithinthe federaldistrict of

Hawaii.

Guantanamo,

t was

argued,

was

beyond

the

reach of

any

districtcourt

because,

while

the

United

States exercised

'complete

jurisdiction'

over

the

base,

it

was 'neither

part

of the United

States nor

a

possession

or

territory

f the

United

States'.

40

OneWhite House counsel revealed

he

administration's

ouble-speak

with unusual lari-

ty:

Guantinamo's

ndeterminate

ocation

'would

eliminate

an

important

egal ambiguity'

by deny-

ing prisoners

held there access to

US courts.

The

reactivationof

the

Cuban

camps

thus

produced

precisely

the

space envisaged

in

the President's

Military

Order

of 13

November

2001,

in

which

it

would be

possible

to detain and

try

suspects

'for

violation of the

laws

of

war

and

other

applicable

laws'

-

in

effect,

acknowledging

he

supremacy

f

the

rule

of law

-

while

simultaneously

uspending

'the

principles

of law and rules of evidence

gen-

erally

recognised

n

the trial of criminalcases

in

the United Statesdistrictcourts'.

1

This

performance

f

the

space

of Guantainamo

would

eventually

becontested. nDecember2003

the US Courtof

Appeals

for the 9th Circuit

pro-

videda

radically

different

reading

of the

original

lease. The

majority

noted that

n

attributing

ulti-

mate

sovereignty'

o

Cuba,

the lease

implied

that

Cuba's

sovereignty

was

residual

in a

temporal

sense,

from

which it

followed

that,

during

ts oc-

cupation

of

the

base,

'the

United

States

possesses

and exercises

all

of the attributes f

sovereignty'.

Since Cubadoes not retainanysubstantive over-

eignty

while the base is

occupied by

the

United

States,

he

court

concluded hat

sovereignty

ests

in

the United

States',

a

finding

which

(as

it record-

ed)

is

consistent

with the

conduct of

the United

States,

whichhas

routinely

reatedGuantinamo

as

if it

were

subject

o American

overeignty'.

n

short,

the

majority

eterminedhatCuba s the reversion-

ary

sovereign

while the United

States

s the

tempo-

rary

sovereign:

but

sovereign

none

the

less.

42

In

June

2004,

the

Supreme

Court

n

a

separate

ase

ruled hat t had urisdictiono hearhabeascorpus

petitions

from

those

imprisoned

at

Guantainamo.

The

administrationad contested he extra-territo-

rial

application

f federal aw but the

majority

ar-

gued

that

'[w]hatever

raction

the

presumption

againstextraterritoriality ight

have

n othercon-

texts,

it

certainly

has

no

application

o

the

opera-

tion of the habeas statute

with

respect

to

persons

detained within the

territorial

urisdiction

of the

United States'. The

majority

did

not

think

t

nec-

essary

to

establish

sovereignty;

he

Achilles' Heel

of the administration'sase arosepreciselybecause

the

United Statesexercised

complete

urisdiction

and

control' ver

Guantinamo,

n

whichcase

it was

within the

territorial

urisdiction

of

the United

States.

Since

the

government ccepted

hat

District

Courts

had

urisdiction

verfederal

agents

andoth-

erAmerican itizens

employed

t

Guantainamo,

nd

since non-residentaliens had

access

to United

Statescourts o hear

petitions

f habeas

corpus,

he

majority

oundthat 'the

federal

courts

have

juris-

diction o determine he

legality

of the Executive's

potentially

ndefinite

detentionof individualswho

claim

to be

wholly

nnocent

of

wrongdoing'.

n

his

dissenting opinion,

however,

Justice

Scalia

com-

plained

hat n

its

ruling

the

Court

boldly

extends

the

scope

of

the habeas statute o the four

corners

of the

earth'.

Scalia

roundly

dismissed

arguments

based on

jurisdiction;

what was

crucial,

he

insist-

ed,

was

that

Guantinamo

was

not 'a

sovereign

do-

minion'.

Hence 'the

Commandern

Chief

andhis

subordinates ad

every

reason to

expect

that the

internmentof combatants at

Guantinamo

Bay

wouldnot havethe

consequence

of

bringing

the

cumbersome

machinery

of our domestic courts

into

militaryaffairs'.43

Thiswas

precisely

heir

expectation.

The admin-

@The author 006

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ompilation

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DEREK GREGORY

istration's

riginalprovisions

and

determinations,

elaborated

hrough

series

of detailed

memoranda,

were

designed

o

produce

a

convergence

between

sovereign power

and

governmentality hrough

whatJudithButler

describes s 'a lawthat s

no

law,

acourt hat snocourt,aprocess hat snoprocess'.

She sees thisas

an

nstrumental,

xpedient, ara-le-

gal

tactic,

n which

bothdetention ndtrial

arede-

termined

by

discretionaryudgements

hat 'func-

tionwithin

a

manufacturedaw

or thatmanufacture

law as

they

are

performed'.

4

Guantanaimo'

as

taken

o

signify

not

only

an

ambiguous pace

-

a

grey

zone over which the United

States

claims

u-

risdiction

but

not

sovereignty

but

also

a

place

of

indeterminateime:

As a territoryheld by the United States in

perpetuity

over which

sovereignty

s

indefi-

nitely

deferred,

he

temporal

dimensions of

Guantinamo's

ocation make it a

chillingly

appropriate lace

for

the

indefinitedetention

of unnamed nemies

in

what the

administra-

tion calls

a

perpetual

war

against

error.45

Intimate

geographies

and

'coercive

interrogation'

Buttheimperative f indefinitedetention, xtend-

ing

the

emergency

d

nfinitum,jibed gainst

a sec-

ond

objective

that

interrupted

ts

limbo with the

counter-imperative

f

speed.46

his is

wherebattle

was

joined

between Defense and

Justice on one

side and he State

Department

n theother.Thefirst

groupargued

hat the 'war

on

terror'

had

inaugu-

rated new

paradigm

hat

requirednterrogators

to

quickly

obtain nformationrom

captured

errorists

andtheir

sponsors',

and n theirview this

rendered

'obsolete

[the]

Geneva

[Convention]'s

trict imi-

tationson

questioning

f

enemy

prisoners'.47

That

being

so- and awofficers ntheState

Department

protested

hat it was

not so:

'a

decision that the

Conventionsdo

apply

[to

all

parties

n

the

war in

Afghanistan]

s

consistent

with

the

plain

anguage

of the Conventions nd he unvaried

ractice

f the

United States'

-

interrogations

would have to be

conducted

beyond

the

prosecutorial

eachof both

the federal

War

CrimesAct and the

GenevaCon-

ventions.

Accepting

he

adviceof DefenseandJus-

tice,

Bush

declared

hat

none of the

provisions

of

the GenevaConventions

pplied

o

al-Qaeda

pris-

oners. He also

accepted

hat he had the

authority

'underthe Constitution o

suspend

[the]

Geneva

[Conventions]

s between the

United States

and

Afghanistan',

ndhis favoured

egal

advisersout-

lined several

ways

in whichhe

might

do so.

Signa-

tories to the

Conventionshave the

right

to 'de-

nounce'

them,

but

they

are

required

o

give

one

year's

writtennotice

and,

f

this takes

place

during

anarmed onflict, heirrepudiations stayeduntil

the end of hostilities.Not

surprisingly,

ush

decid-

ed not to invoke his

option though

he reserved he

right

o do so

in

future);

he

preferred

he

expedient

of

deeming

Taliban

risoners

o be 'unlawful

om-

batants'who 'did not

qualify

as

prisoners

of war

under he Geneva

Conventions'.48

lthough

here

are established

procedures

o determine he status

of

prisoners

aken

during

rmed

onflict,

he

White

House insisted hatthese were

only

to

be

invoked

where

here

was

doubt.And

n

the view of the

Pres-

ident's innercircle, reinforcedby theirpolitical

theology,

herecould never

be

any

doubt.49

Herewas

sovereign

power

at its

most

naked,

and

when hefirst

prisoners

rom

Afghanistan

rrived t

Guantdinamo

ay

in

January

002,

it

was

viscerally

clear that

hey

were

to

be

reduced o bare ife. All

legal protections

adbeen

visibly

withdrawnrom

them.

Photographs

f their

transportation

nd in-

carceration t once

displayed

and

reinforced heir

reduction o

something

ess

than

human.

They

had

been

chained,

gloved,

ear-muffed and masked

throughoutheirtwenty-seven-hourlight,and ar-

rived

soaked

n

theirown

bodily

waste.

Otherwise,

the chairman f the

JointChiefs

of Staff

explained,

they

would

'gnaw throughhydraulic

ines at the

back of

a

C-17 to

bring

t

down'.

As

they slowly

shuffled

down

the

ramp

n their

umpsuits,

one re-

porter

wrote:

[They]

don't ook natural.

They

ook

like

giantbrightorange

lies'. Thenwere ed

off to

theirmakeshift teel-mesh

ages

at

CampX-Ray.50

The

Department

f Defense

published

ts

own

pho-

tographs

f

their

arrival,

hackledbetween

guards,

kneeling

and

bound,

or

transported

n stretcherso

interrogation

nd he

camp

and ts

cell-blocks,

and

Butler s

surelyright

o conclude hat his was done

'to

makeknown hat

a

certain

anquishing

adtak-

en

place,

hereversal f national

umiliation,

sign

of successfulvindication'.51

Camp

X-Ray

was

thrown

p

n a

matter f weeks

as

a

short-term

xpedient;

t was

closed

in

April

2002 whendetaineeswere ransferred

o cells

in

the

new,

moremodem

Camp

Delta,

whichwas intend-

ed for

long-term

ncarceration.t consists of four

internal

amps:Camps

1,2

and3 aremaximum-se-

curity

acilities n which

prisoners

areconfined o

individualcells with

varying

evels of restriction

and

privilege,

and

Camp

4 is a

medium-security

a-

414

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13/24

DEREK

GREGORY

scribes

torture

nd

coercive

nterrogation,

nd re-

quires military

nterrogators

o

comply

with

the

Geneva

Conventions. he US

Army

has

develop

black flag guantanamo bay and the sn derek gregory geografiska annaler. series b, human geography,...

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