INDEFINITE DETENTION Judith Butler
On March 21st of this year, the Department of Defense, in conjunction with the Department of Justice, issued new guidelines for the military tribunals in which some of the detained suspected terrorists and captured prisoners, domestically and in Guantanamo Bay, would be tried by the U.S. What has been striking about these detentions from the start, and continues to be alarming is that the right to legal counsel and, indeed, the right to a trial has not been granted to most of these detainees. The new military tribunals are, in fact, not courts of law to which the detainees are entitled. Some will be tried, and others will not, and at the time of this writing, none have been tried at all. The Geneva Convention’s right to counsel, to means of appeal, and to expatriation, have not been granted to any of the detainees in Guantanamo, and although the U.S. has announced its recognition of the Taliban as “covered” by the Geneva Accord, it has made clear that even the Taliban do not have POW status; indeed, no prisoner in Guantan amo does.
In the name of a security alert and national emergency, the law is effectively suspended in both its national and international forms. And with the suspension of law comes a new exercise of state sovereignty, one that not only takes place outside the law, but through an elaboration of administrative bureaucracies in which officials now decide not only who will be tried, and who will be detained, but hold ultimate power over whether someone may be detained indefinitely. With the publication of the new regulations, the U.S. government holds that a number of detainees at Guantanamo will not be given trials at all, but detained indefinitely. On the one hand, it is crucial to ask, under what conditions do human lives cease to become eligible for basic, if not universal, human rights? How does the U.S. government construe these conditions? And to what extent is there a racial and ethnic frame through which these imprisoned lives are viewed and judged such that they are judged as less than human, or has having departed from the recognizable human community? On the other hand, in maintaining that some prisoners will be detained indefinitely, the state allocates to itself a power, an indefinitely prolonged power, to exercise judgements on who is dangerous and without entitlement to basic legal rights. In detaining some prisoners indefinitely, the state appropriates for itself a sovereign power that is defined over and against existing legal frameworks, civil, military, and international. The military tribunals may well acquit someone of a crime, but that acquittal is not only subject to mandatory executive review, but the Department of Defense has also made clear that acquittal will not necessarily end detention. Moreover, according to the new tribunal regulations, this tried in such a venue will have no rights of appeal to U.S. civil courts. Here we can see that the law itself is either suspended, or regarded as an instrument that the state may use in the service of constraining and monitoring a given population; the state is not subject to the rule of law, but law can be suspended or deployed tactically and partially to suit the requirements of a sovereign state that acts in the name of its own self-preservation, but also, in that name, extends its own power to imprison some group of people indefinitely without trial. In the very act by which state sovereignty suspends law, or contorts law to its own uses, it extends its own domain, its own necessity, and develops the means by which the justification of its own power takes place.
The state augments its own power in at least two ways. In the context of the military tribunals, the trials are effectively advisory to the executive branch, since the executive branch will not only decide whether or not a “detainee” will stand trial, but will appoint the tribunal, review the process, and have final say over matters of guilt and innocence as well as on the punishment, if any, to be received. Because detainees are not entitled to these trials, but may be offered them at the will of executive power, there is no semblance of separation of powers in these circumstances. For those who are detained indefinitely, their cases will be reviewed by officials - not by courts - on a periodic basis. These acts are themselves not grounded in law, but in another form of judgment. In this sense, they are already outside the sphere of law, since the determination of when and where, for instance, a trial might be waived and detention deemed indefinite does not take place within a legal process; it is not a decision, for instance, made by a judge, for which evidence must be submitted, or a case that must be made that meets certain established criteria or conforms to certain protocols of evidence and argument. It is a unilateral judgement made by officials, government officials, who simply deem that a given individual or, indeed, a group poses a danger to the state. This act of “deeming” takes place in the context of a state of emergency that is understood to warrant the suspension of law, including due process for these individuals. But if detention may be indefinite, and such detentions are presumably justified on the basis of a state of emergence, then the government is imagining a protracted, if not indefinite state of emergency. Indeed, whereas it makes sense that the U.S. government would take immediate steps to detain those who against whom there is evidence that they intend to wage violence against the U.S., it seems important to question whether the government now extends conditions of national emergency such that the state will now have recourse to extra-legal detention and the suspension of established law, both domestic and international, for the foreseeable future. Indeed, the “indefinite” detention of the untried prisoner - or the prisoner tried by military tribunal and detained, regardless of the outcome - is a practice that presupposes the indefinite extension of the war on terrorism. And if this “war” becomes a permanent part of the state apparatus, a condition which justifies and extends the use of military tribunals, then the executive branch has set up its own judiciary function, one that overrides the separation of power, the writ of habeas corpus (for the Guantanamo Bay prisoners), and the entitlement to due process.
These prisoners are detained, indefinitely; they are not really called “prisoners” since then the rights pertaining to prisoners would come into play. They are “detainees,” those who are held in waiting, those for whom waiting may well be without end. To the extent that the state arranges for this pre-legal state as an “indefinite” one, it maintains that there will be those held by the government for whom the law does not apply, not only in the present, but for the indefinite future. In other words, there will be those for whom the protection of law is indefinitely postponed. The state, in the name of its right to protect itself and, hence, in the name of its sovereignty, extends its power in excess of the law; for if the detention is indefinite, then so, too, is the lawless exercise of state sovereignty. In this sense, indefinite detention provides the condition for the indefinite exercise of extra-legal state power. Although the justification for not providing trials, and the attendant rights of due process, legal counsel, rights of appeal, and so on, is that we are in a state of national emergency, a state understood as out of the ordinary, it nevertheless follows from the practice of indefinite detention that this extra-legal power of the state will be extended indefinitely as well. This is, then, not an exceptional circumstance, but a means by which the extra-legal exercise of state power justifies itself more or less indefinitely, installing itself as a more or less permanent feature of political life in the U.S..
The military tribunals are understood to apply not only to those arrested within the U.S., but for “high-ranking” officials currently detained in Guantanamo Bay. The Washington Post reported that “there may be little use for the tribunals because the great majority of the 300 prisoners being held at the U.S. naval base at Guantanamo Bay, Cuba, are low-ranking foot soldiers. Administration officials have other plans for many of the relatively junior captives now at Guantanamo Bay: indefinite detention without trial. U.S. officials would take this action with prisoners they fear could pose a danger of terrorism even if they have little evidence of past crimes.”
“Could pose a danger of terrorism.” This means that conjecture is the basis of detention, but also that conjecture is the basis of an indefinite detention without trial. One could simply respond to these events by saying that everyone detained deserves a trial, and I do believe that is the right thing to say, and I am saying that. But saying that would not be enough, since we have to look at what constitutes a trial in the cases where a detainee would be tried in these new military tribunals. What kind of trial does everyone deserve? In these new tribunals, evidentiary standards are very lax. In fact, hearsay and second-hand reports will constitute relevant evidence, whereas in regular trials, either in the civil court system or the established military court system, they would be dismissed out of hand. Whereas some international human rights courts do permit hearsay, they do so under conditions in which non-refoulement is honored, that is, rules under which prisoners may not be exported to countries where confessions can be extracted through torture. Indeed, if one understands that trials are usually the place where we can test whether hearsay is true or not, where second-hand reports have to be documented by persuasive evidence or dismissed, then the very meaning of the trial has been transformed by the notion of a procedure that explicitly admits unsubstantiated claims, and where the claims that are admissible cannot be evaluated in terms of the fairness and non-coerciveness of the interrogative means used to garner that information.
The Department of Defense says explicitly that these trials are planned “only for relatively high-ranking Al Qaeda and Taliban operatives against whom there is persuasive evidence of terrorism or war crimes.” (March 21, 2002) If the trials are saved for high-ranking officials against whom there is persuasive evidence, then this suggests that either the relatively low-ranking detainees are those against whom there is no persuasive evidence, or that even if there is persuasive evidence against low-ranking members, these members have no entitlement to hear the charge, to prepare a case for themselves, or to obtain release or final judgement through a tribunal procedure. Given that the notion of “persuasive evidence” has become effectively rewritten to include conventionally non-persuasive evidence, such as hearsay and second-hand reports, and there is a chance that U.S. means that there is no evidence that would be found to be persuasive against these members by a new military tribunal, the U.S. is effectively admitting that neither hearsay nor second-hand reports would work as evidence to convict these low-ranking members. Given as well that the Northern Alliance is credited with turning over the Al-Qaeda and Taliban detainees to U.S. authorities, it would be important to know whether that organization had good grounds for identifying the individuals detained, before the U.S. decides to detain them indefinitely. If there is no such evidence, one might well wonder, then, why they are being detained at all. And if there is evidence, but such individuals are not given a trial, one might well wonder, how is the worth of these lives regarded such that they are not eligible for legal entitlements guaranteed by existing U.S. law and international human rights law?
To be fair, there are international precedents for indefinite detention without trial. The U.S. cites European human rights courts that allowed British authorities to detain Irish Catholic and Protestant militants for long periods of time, if they were, and I quote, “deemed dangerous, but not necessarily convicted of a crime.” They have to be “deemed dangerous”, but the “deeming” is not, as I’ve mentioned, a judgement that needs to be supported by evidence, or for which there are rules of evidence. They have to be deemed “dangerous,” but the danger has to be understood quite clearly as a danger in the context of a national emergency. In those cases cited by the Bush administration, the detentions lasted indefinitely, as long as ‘British officials” - notably not courts - reviewed the cases from time to time. So these are administrative reviews, which means that these are reviews managed by officials who are not part of any judicial branch of government, but agents of governmentality, as it were, administrative appointees or bureaucrats who have absorbed the adjudicative prerogative from the judicial branch. Similarly, these military tribunals are ones in which the chain of custody is suspended, which means that evidence seized through illegal means will still be admissible at trials. The appeal process is automatic, but the final say in matters of guilt and punishment resides with the executive branch, and the Office of the President himself. This means that whatever conclusions these trials come up with, can be potentially reversed or revised by the executive branch, a procedure which effectively overrides the separation of powers doctrine, suspending once again the binding power of the constitution in favor of an unchecked enhancement of executive power.
The Department of Defense published pictures of prisoners shackled and kneeling, with hands manacled, mouths covered by surgical masks, and eyes blinded by blackened goggles. Sedatives reportedly were given, heads shaved, and the cells where they are held are 8 feet by 8 feet and 71/2 feet high, larger then the ones for which they are slated and which, Amnesty International reports in April of 2002, are appreciably smaller than international law allows. There is a question of whether the metal sheet called a “roof” offers any of the protective functions against wind and rain associated with that architectural function.
The photographs produced an international outcry because the degradation - and the publicizing of the degradation - contravened the Geneva Convention, as the International Red Cross pointed out, and because these individuals were rendered faceless and abject, likened to caged and restrained animals. Indeed, Secretary Rumsfeld’s own language at press conferences seems to corroborate this view that the detainees are not like other humans, not like other humans who enter into war, and that they are, in this respect, not “punishable” by law, but deserving of immediate and sustained forcible incarceration. When Secretary Rumsfeld was asked why these prisoners were being forcibly restrained and held without trial, he explained that if they were not restrained, they would kill again. He implied that the restraint is the only thing that keeps them from killing, that they are beings whose very propensity it is to kill: that is what they would do as a matter of course. Are they pure killing machines? If they are pure killing machines, then they are not humans in need of restraint, entitled to trials, to due process, to knowing and understanding a charge against them. They are something less than human, and yet they assume a human form. They represent, as it were, an equivocation of the human, which forms the basis for some of the skepticism about the applicability of legal entitlements and protections.
In the news conference on March 21, DOD General Counsel Haynes answers a reporter’s question in a way that confirms that this equivocation is at work in their thinking. The danger that these prisoners are said to pose is unlike dangers that might be substantiated in a court of law and redressed through punishment. A reporter, unnamed in the news conference, concerned about the military tribunal, asks whether if someone is acquitted of a crime under this tribunal, whether they will be set free. Haynes replies, “If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge, but might not automatically be released. The people we are detaining, for example, in Guantanamo Bay, Cuba, are enemy combatants that we captured on the battlefield seeking to harm U.S. soldiers or allies, and they’re dangerous people. At the moment, we’re not about to release any of them unless we find that they don’t meet those criteria. At some point in the future...” The reporter then interrupts, saying, “But if you [can’t] convict them, if you can’t find them guilty, you would still paint them with that brush that we find you dangerous even though we can’t convict you, and continue to incarcerate them?” After some to and fro, Haynes steps up to the microphone, and explains that “the people that we now hold at Guantanamo are held for a specific reason that is not tied specifically to any particular crime. They’re not held - they’re not being held on the basis that they are necessarily criminals.” On the one hand, they will not be released unless the U.S. finds that “they don’t meet those criteria,” but it is unclear what criteria is at work in Haynes’ remark. On the one hand, if it is the new military tribunal that sets the criteria, those tribunals do not guarantee the release of the prisoner, even if the prisoner is acquitted of a crime in the course of a tribunal. The reason for this is that the prisoner may well be “deemed dangerous,” but we are given no criteria by which to understand how that deeming takes place, or on what basis. Establishing dangerousness is not the same as establishing guilt and, in his view, and in views subsequently repeated by administrative spokespersons, the executive branch’s power to deem a detainee dangerous preempts any determination of guilt or innocence established by a military tribunal.
In the wake of this highly qualified approach to the new military tribunals, we see not only that these are tribunals whose rules of evidence depart in radical ways from both the rules of civilian courts and of existing military court protocols, that they will be used against some detainees, that the Office of the President will decide who qualifies for these secondary military tribunals, and that matters of guilt and innocence reside finally with the executive branch. If a military tribunal acquits a person, the person may still be deemed dangerous, which means that the determination by the tribunal can be preempted by an extra-legal determination of dangerousness. Given that the military tribunal is itself extra-legal, we seem to be witnessing the replication of a principle of sovereign state prerogative that knows no bounds. At every step of the way, the executive branch decides the form of the tribunal, appoints its members, determines the eligibility of those to be tried, and assumes power over the final judgement; it imposes the trial selectively; it dispenses with conventional evidentiary procedure. And it justifies all this through recourse to a determination of “dangerousness” which it alone is in the position to decide. A certain level of dangerousness takes a human outside the bounds of law, and even outside the bounds of the military tribunal itself, makes that human into the state’s possession, infinitely detainable. What counts as “dangerous” is what is deemed dangerous by the state, so that, once again, the state posits what is dangerous, and in so positing it, establishes the conditions for its own preemption and usurpation of the law, a notion of law that has already been usurped by a tragic facsimile of a trial.
If people are simply deemed dangerous, then it is no longer a matter of deciding whether criminal acts occurred. Indeed, “deeming” someone dangerous, is an unsubstantiated judgement that, in these cases, works to preempt determinations for which evidence is required. The license to brand and categorize and detain on the basis of suspicion alone, expressed in this operation of “deeming,” is potentially enormous. We have already seen it at work in racial profiling, in the detention of hundreds of Arab residents or Arab-American citizens, sometimes on the basis of last names alone; the attacks on individuals of Middle-East descent on U.S. streets, and the targeting of Arab-American professors on campuses. Indeed, when Rumsfeld has sent the U.S. into periodic panics or “alerts,” he has not told the population what to look out for, but only to have a heightened awareness of suspicious activity. This objectless panic translates too quickly into suspicion of all dark skinned peoples, especially those who are Arab, or appear to look so to a population not always well-versed in making visual distinctions, say, between Sikhs and Muslims or, indeed, Sephardic or Arab Jews and Pakistani-Americans..
Although “deeming” someone dangerous is considered a state prerogative in these discussions, it is also a potential license for prejudicial perception and a virtual mandate to heighten racialized ways of looking and judging, that is, prejudicial forms of suspicion in the name of national security. A population of Islamic peoples, or those taken to be Islamic, becomes targeted by this government mandate to be on heightened alert, with the effect that the Arab population in the U.S. becomes visually rounded up, stared down, watched, hounded and monitored by a group of citizens who understand themselves as foot soldiers in the war against terrorism. What kind of public culture is being created when a certain “indefinite containment” takes place outside the prison walls, on the subway, in the airplanes, on the street, on the workplace. A falafel restaurant run by Lebanese Christians that does not exhibit the American flag becomes immediately suspect, as if the failure to fly the flag becomes read as a sign of sympathy with Al-Qaeda, a deduction that has no justification, but which nevertheless rules public culture - and business interests - at this time.
If it is the person, or the people, who are deemed dangerous, and no dangerous acts need to be shown or proven to anyone to establish this as true, then the state constitutes the detained population unilaterally, taking them out of the jurisdiction of the law, depriving them of the legal protections to which subjects under national and international law are entitled. These are surely populations that are not subjects, humans who are not conceptualized within the frame of a political culture in which human lives are underwritten by legal entitlements, law, and so humans who are not humans.
We saw evidence for this derealization of the human in the photos released by the Department of Defense of the shackled bodies in Guantanamo. The DOD did not hide these photos, but published them openly. My speculation is that they understood these photographs as publishing a certain vanquishing, the reversal of national humiliation, a sign of a successful vindication. These were not photographs leaked to the press by some human rights agency or concerned media enterprise. So the international response was no doubt disconcerting, since instead of moral triumph, many people, many British parliamentarians and European human rights activists among them, saw moral failure. Instead of vindication, many saw instead revenge, cruelty and a nationalist and self-satisfied flouting of international convention. So that several countries asked that their citizens be returned home for trial.
But there is something more in this degradation that calls to be read. There is a reduction of these human beings to animal status, where the animal is figured as out of control, in need of total restraint. Indeed, it is important to remember that the bestialization of the human in this way has little, if anything, to do with actual animals, since it is a figure of the animal against which the human is defined. Indeed, even if, as seems most probable, some or all of these people have violent intentions, have been engaged in violent acts, and murderous ones, there are ways in which murderers have been dealt with under criminal law and under international law. The language by which they are described by the U.S., however, suggests that these individuals are exceptional, that they may not be individuals at all, that they must be constrained in order not to kill, that they are effectively reducible to a desire to kill, and that regular criminal and international codes cannot apply to beings such as these.
The treatment of these prisoners is considered as an extension of war itself, not as a post-war question of appropriate trial and punishment. Their detention stops their killing. If they were not detained, and forcibly so when any movement is required, they would apparently start killing on the spot; they are beings who are in a permanent and perpetual war. Now it may be that Al-Qaeda representatives speak this way - Moussaui certainly does - but that does not mean that every individual detained embodies that position, or that those detained are centrally concerned with the continuation of war. Indeed, recent reports, even from the investigative team in Guantanamo, suggest that some of the detainees were only tangentially or transiently involved in the war effort (“Some Detainees Held on Guantanamo are Young Foot Soldiers Caught Up in the Afghan War, U.S. Officials Say”, Associated Press, March 29, 2002). But even General Dunlavey who makes this admission, claims that the risk is still too high to release such detainees. And Rumsfeld cites in support of forcible detention the prison uprisings in Afghanistan in which prisoners managed to get hold of weapons and stage a battle inside the prison. In this sense, the war is not, and cannot be, over; there is a chance of battle in the prison, and there is a warrant for physical restraint, such that the post-war prison becomes the continuing site of war. It would seem that the rules that govern combat are in place, but not the rules that govern the proper treatment of prisoners separated from the war itself. Indeed, if it is a war against terrorism, how can it end? Is it therefore a war without end, given the lability of the terms, ‘terrorism” and “war”? Although the pictures were published as a sign of U.S. triumph, and so apparently indicating a conclusion to the war effort, it is clear that bombing and armed conflict continues in Afghanistan, and so the war was not over, and even the photographs, and the degradation, and the indefinite detention are continuing acts of war. Indeed, war seems to have established a more or less permanent condition of national emergency, and the sovereign right to self-protection outflanks any and all recourse to law.
When General Counsel Haynes was asked, “so you could in fact hold these people for years without charging them, simply to keep them off the street, even if you don’t charge them?”, he replied, “We are within our rights, and I don’t think anyone disputes it that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don’t see an end in sight right now.”(my emphasis)
The exercise of sovereign power is bound up with the extra-legal status of these official acts of speech. These acts becomes the means by which sovereign power extends itself; the more it can produce equivocation, the more effectively it can augment its power in the apparent service of justice. These official statements are also media performances, a form of state speech that establishes a domain of official utterance distinct from legal discourse. When many organizations and countries questioned whether the U.S. was honoring the Geneva Conventions protocols on the treatment of prisoners of war, the administration waffled in its response. It maintained that the prisoners at Guantanamo were being treated in a manner “consistent with” the Geneva convention, they did not say that they understand the U.S. to be obligated to honor that law, or that this law had a binding power over the U.S.. Indeed, the power of the Geneva Convention has been established by the U.S. as unbinding in several instances over the last month. The first instance seemed to be the claim that appears to honor the Convention, namely, that the U.S. is acting in a manner consistent with the convention, or, alternatively, that the U.S. is acting in the spirit of the Geneva accords. To say that the U.S. acts consistently with the accords is to say that the U.S. acts in such a way that does not contradict the accords, but it does not say that the U.S., as a signatory to the accords, understands itself as bound to the accords. To acknowledge the latter would be to acknowledge the limits that international accords impose upon claims of sovereignty. To act consistently with the accord is to determine one’s own action, and to regard that action as in some unspecified way, compatible with the accords. Matters get worse, however, when we see that certain rights laid out in the Geneva Accords, Article 3, such as the right to counsel, to knowing the charge against them, consideration by a regularly constituted court, rights of appeal, and a timely repatriation, are not being honored and are not in the planning. Matters become even more vexed, but perhaps finally more clear, when we hear, as we have, that, well, none of the detainees in Guantanamo are to be regarded as prisoners of war according to the Geneva Convention, since none of them belong to “regular armies.” Under pressure, the Bush administration conceded that the Taliban were covered by the Geneva Convention, because they were the representatives of the Afghan government, but that they still are not entitled to prisoner of war status under that accord. Indeed, the administration finally said quite clearly that the Geneva Accord was not designed to handle this kind of war, and so its stipulations about who is and is not regarded as a prisoner of war, who is entitled to the rights pertaining to such a status, are anachronistic. The administration thus dismisses the Accord as anachronistic, but claims to be acting consistent with it.
When relatively widespread outrage emerged in response to the publication of the shackled bodies in Guantanamo, the U.S. asserted it was treating these prisoners humanely. The word, “humanely”, was used time and again, and in conjunction with the claim that the U.S. was acting consistently with the Geneva Convention. It seems important to recognize that one of the tasks of the Geneva Convention was to establish what does and does not qualify as the humane treatment of prisoners of war. In other words, one of the tasks was to seek to establish an international understanding of “humane treatment” and to stipulate what conditions must first be met before we can say that humane treatment has been offered. The term “humane treatment” thus received a legal consideration, and the result was a set of conditions, explicitly formulated, which, if satisfied, would constitute humane treatment. When the U.S. says, then, that it is treating these prisoners humanely, it uses the word in its own way and for its own purpose, but it does not accept that the Geneva Accord stipulates how the term might legitimately be applied. In effect, it takes the word back from the Accord at the very moment that it claims to be acting consistently with the accord. In the moment that it claims to be acting consistently with the accord, it effectively maintains that the accord has no power over it. Similarly, if the U.S. says that it recognizes that the Taliban are to be considered under the Geneva Convention, but then says that even Taliban soldiers are not entitled to prisoner of war status, the U.S, effectively disputes the binding power of the agreement. Given that the agreement maintains that a competent tribunal must be set up to determine prisoner of war status, and that all prisoners are to be treated as POWS until such time as a competent tribunal makes a different determination, and given that the U.S. has arranged for no such tribunal and has made this determination unilaterally, the U.S. disregards the very terms of the agreement again: as a result, the “recognition” of the Taliban as being covered by an Accord that the U.S. treats as non-binding is effectively worthless, especially when it continues to deny POW status to those it ostensibly recognizes.
The U.S. shows hubris, if not contempt, with regard to both its own constitution and international law mechanisms in either relegating law to an instrumentality of the state or suspending law in the interests of the state. When a reporter asked the DOD representatives why a military tribunal system was required, given that both a civil court and a military court system already exist, they responded that they needed another “instrument,” given the new circumstances. The law is not that to which the state is subject, is not that which distinguishes between lawful state action and unlawful, but is now expressly understood as an instrument, an instrumentality of power, one that can be applied and suspended at will. Sovereignty consists now in the variable application, contortion, and suspension of the law; it is, in its current form, a relation to law: exploitative, instrumental, disdainful, preemptory, arbitrary.
In his C-SPAN appearance in late February, Rumsfeld was exasperated with the legal questions about Guantanamo which at that time centered on humane treatment and POW status.
He repeatedly appealed instead to a substantive military and public goal to justify the treatment of prisoners in Cuba. He leaned over the microphone and exclaimed that he was just trying to keep these people off the streets, and out of the nuclear power plants, so that they would not kill anymore people. People have to be detained so they do not kill. In answer to the question of whether or not they will be charged with a crime, whether they can expect trials, he thought it was reasonable to expect that they would, but he offered no commitment to that effect. But here again, he did not understand the Department of Defense to be obligated in any way to do that in a timely fashion after a conflict is concluded or, indeed, to commit itself to following the international law that would make of that a strict obligation and an unconditional right. It was “perfectly reasonable” to keep them off the streets, he said, so that they do not kill. And so what seems perfectly reasonable to do is the basis for what he and the government are doing, and the “law” is surely there to be consulted, as international convention is there as a kind of model, but not as an obligatory framework for action. The action is autonomous, outside the law, looking to the law, considering it, consulting it, even perhaps, on occasion, acting consistently with it. But the action is itself extra-legal, and understands itself to be justified as such. In fact, the law seemed to bother him. In responding to all these questions about legal rights and responsibilities, he remarked that he would leave these questions to others who did not drop out of law school, as he had. And then he laughed, as if some praiseworthy evidence of his own American manhood was suddenly displayed. The show of strength indifferent to the law was early on encapsulated by Bush’s “Dead or Alive” slogan applied to Osama bin Laden, and Rumsfeld seems to continue this cowboy tradition of vigilante justice in the current situation.
He wouldn’t worry about the metal sheets that act as roofs on the cages in which the prisoners are found. After all, he says earnestly, I’ve been to Cuba, and it has beautiful weather. And then, as if these legal questions were so many gnats around his ankle on a hot day in Cuba, he says, “I’m not a lawyer. I’m not into that end of the business.”
So he’s not into that end of the business, but we might say that, more generally, many actions are being taken that are not into that end of the business. Bush repeated this a few days later by claiming that he would review all the “legalisms” before making a final decision on their status, displaying a tone of exasperation. T at work in these statements is that detention and legal process are separable activities, that detention is the DOD’s end of the business, and legal processes belong somewhere else. So the question is whether these are illegal combatants, those who are not fighting in a regular armed force, as the U.S. maintains, or whether this is illegal detention, as international rights perspectives seem to concur. It is as if the entire conflict takes place in an extra-legal sphere. The confusion Rumsfeld has - and here it is not just a matter of his confusion, but a confusion that runs through the entire detainment effort - when asked, Have these people been charged with anything, is telling. “Well, yes,” he says, hesitating; “they have been charged,” and then, as if he realizes that this term might have a technical meaning, he revises his claim, explaining that they “have been found to be people shooting,” emphasizing the word “found.” Of course, they haven’t been “found” in some legal sense, but only “found” by someone, a representative of the Northern Alliance most likely, who claimed to see or to know, and so a certain equivocation takes place between a legal and non-legal use of the term. The fact remains that these are individuals who are being detained without having been charged with a crime or given access to lawyers to prepare their own cases. That there are rules governing lawful detention of war prisoners does not seem to be important. The only thing that is important is averting the consequence of having apparent killers on the street. If the law gets in the way, if the law requires that charges be made and substantiated, and done within a given period of time, then there is a chance that compliance with the law would stand in the way of realizing the goal of more or less permanent detention.
So, these prisoners, who are not prisoners, will be tried, if they will be tried, according to rules that are not those of a constitutionally defined U.S. law. Under the Geneva Conventions, they would be entitled to trials under the same procedures as U.S. soldiers - through court-martial or civilian courts - not through military tribunals as the Bush administration has proposed. The current regulations for military tribunals provide for the death penalty if all members of the tribunal agree to it. But the President will be able to decide on that punishment unilaterally if, as is required, he decides so at the final stage of deliberations in which an executive judgement is made. And there are no rights of appeal. Is there a time-frame set forth in which this particular judicial operation will cease to be? In response to a reporter who asked whether the government was not creating procedures that would be in place indefinitely, “as an ongoing additional judicial system created by the executive branch,” General Counsel Haynes points out that the “the rules [for the tribunals] ...do not have a sunset provision in them...I’d only observe that the war, we think, will last for a while.”
So you might conclude that I simply want the law to be followed. And in a way, that is part of what I do want. But I also have a problem with the law. And think it needs to be criticized and revised. I wrote about this in The Nation (April 1, 2002), so I will not fully rehearse that argument here. But in brief, I’m concerned, equally concerned, about the fact that the Geneva Convention is, in part, a civilizational discourse, and it nowhere asserts an entitlement to protection against degradation and violence and rights to a fair trial as universal rights. Other international covenants surely do, and many human rights organizations have argued that the Geneva Convention can and ought to be read to apply universally. The International Committee of the Red Cross made this point publicly (February 8, 2002). Kenneth Roth, Director of Human Rights Watch, has argued strongly that such rights do pertain to the Guantanamo Prisoners (January 28, 2002), and the Amnesty International Memorandum to the US Government (April 15, 2002), makes clear that fifty years of international law as built up the assumption of universality, codified clearly in Article 9(4) of the International Covenant on Civil and Political Rights, ratified by the U.S. in 1992. Similar statements have been made by the International Commission on Jurists (February 7, 2002) and the Organization for American States human rights panel made the same claim (March 13, 2002), seconded by the Center for Constitutional Rights. The recourse to the Geneva Convention, itself drafted in 1949, as the exclusive document for guidance in this area is in itself problematic as a result. It is in the business of establishing and applying a selective criterion to the question of who merits protection under its provisions, and who does not. In a sense, the Geneva Convention assumes that certain prisoners might not be protected by its statute, and it clearly privileges those prisoners from wars between recognizable states.
Indeed, to the extent that the Geneva Convention gives grounds for a distinction between legal and illegal combatants, it distinguished between legitimate violence and illegitimate violence. Legitimate violence is waged by recognizable states or “countries,” as Rumsfeld puts it, and illegitimate violence is precisely that which is committed by those who are landless, stateless. In the present climate, we see the intensification of this formulation as various forms of political violence are called “terrorism,” not because there are valences of violence that might be distinguished from one another, but as a way of characterizing violence waged by, or in the name of, authorities deemed illegitimate by established states. As a result, we have the wholescale and sweeping dismissal of the Palestinian Intifada as “terrorism” by Ariel Sharon, whose use of state violence to destroy homes and lives is surely extreme. The use of the term, “terrorism,” thus works to delegitimate certain forms of violence committed by non-state centered political entities at the same time that it sanctions a violent response by established states. Obviously, this has been a tactic for a long time as colonial states deal with the Palestinians and with the Irish Catholics, and it was as well a case made against the ANC in South Africa. But the new form that this kind of argument is taking, and the naturalized status it assumes, will only intensify the enormously damaging consequences for the struggle for Palestinian self-determination. Israel takes advantage of this formulation by holding itself accountable to no state of law at the very same time that it understands itself as engaged in legitimate self-defense by virtue of its status as state violence. In this sense, the framework for conceptualizing global violence is such that terrorism becomes the name to describe the violence of the illegitimate, whereas legal war becomes the prerogative of those who can assume international recognition as legitimate states.
The fact that these prisoners are seen as pure vessels of violence, as Rumsfeld claimed, suggests that they do not become violent for the same kinds of reason that other politicized beings do, that their violence is somehow constitutive, groundless, and infinite, if not innate or constitutive. If this is terrorism rather than violence, it is action that has no political goal, or cannot be read politically. It emerges, as they say, from fanatics, extremists, who do not espouse a point of view, exist outside of “reason”, and do not have a part in the human community. That it is Islamic extremism or terrorism simply means that the dehumanization that Orientalism already performs is heightened to an extreme, so that the uniqueness and exceptionalism of this kind of war makes it exempt from the presumptions and protections of universality and civilization. When the very human status of those who are imprisoned is called into question, it is a sign that we have made use of a certain parochial frame for understanding the human, and failed to expand our conception of human rights to include those whose values may well test the limits of our own. The figure of Islamic extremism is a very reductive one at this point in time, belying an extreme ignorance about the various social and political forms that Islam takes, the tensions, for instance, between Sunni and Shiite Muslims, and the wide range of religious practice that have little, if any, political implications, or whose political implications are pacificist. If we assume that everyone who is human goes to war like us, or that the violence we commit is violence that falls within the realm of the recognizably human, we make use of a limited and limiting cultural frame to understand what it is to be human. But to be human implies many things, one of which is that we are the kinds of beings who must live in a world where clashes of value do and will occur, and that these clashes are a sign of what a human community is. Whether we continue to enforce a universal conception of human rights at moments of outrage and incomprehension, precisely when we think that others have taken themselves out of the human community as we know it, is a test of our very humanity. We would make a mistake, therefore, if we take a single definition of the human, or a single model of rationality, to be the defining feature of the human, and then extrapolate from that pregiven
understanding of the human to all of its various cultural forms. That direction will lead us to wonder whether some humans who do not exemplify reason and violence in the way defined by our definition are still human, or whether they are “exceptional” (Haynes) or “unique” (Hastert), or “really bad people” (Cheney) presenting us with a limit case of the human, one which, unfortunately, we have so far failed. To come up against what functions, for some, as a limit case of the human is a challenge to rethink the human. And the task to rethink the human is part of the democratic trajectory of an evolving human rights jurisprudence. It should not be surprising to find that there are racial and ethnic frames by which the recognizably human is currently constituted. One critical operation of any democratic culture is to contest these frames, to allow a set of dissonant and overlapping frames to come into view, to encounter the challenges of cultural translation, especially those that emerge when we find ourselves living in proximity with those who beliefs and values challenge our own at very fundamental levels. More fundamentally, it is not that “we” have a common idea of what is human, for Americans are constituted by many traditions, including Islam in various forms, so any radically democratic self-understanding will have to come to terms with the heterogeneity of human values. This s not a relativism that undermines universal claims; it is the condition by which a concrete and expansive conception of the human will be articulated, the way in which parochial and implicitly racially and religiously bound conceptions of human will be made to yield to a wider conception of how we consider who we are as a global community. We do not yet understand all these ways, and in this sense, human rights law has yet to understand the full meaning of the human. It is, we might say, an ongoing task of human rights to reconceive the human when it finds that its putative universality does not have universal reach.
The question of who will be treated humanely presupposes that we have first settled the question of who does and does not count as a human. And this is where the debate about western civilization and Islam is not merely or only an academic debate, a misbegotten pursuit of Orientalism by the likes of Bernard Lewis and Samuel Huntington who regularly produce monolithic accounts of the “East,” contrasting the values of Islam with the values of western “civilization.” In this sense, “civilization” is a term that works against an expansive conception of the human, one that has no place in an internationalism that takes the universality of rights seriously. The term, and the practice, of “civilization,” works to produce the human differentially by offering a culturally limited norm for what the human is supposed to be. It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization becomes the condition for the production of the human to the extent that a ‘Western’ civilization defines itself over and against a population understood as definitionally illegitimate, if not dubiously human.
The question is, rather, how a spurious notion of civilization provides the measure by which the human is defined at the same time that a field of would-be humans, the spectrally human, the deconstituted, are maintained and detained, made to live and die within that extra-human and extra-juridical sphere of life. It is not just the inhumane treatment of the Guantanamo prisoners that attests to this field of beings apprehended, politically, as unworthy of basic human entitlements. It is also found in some of the legal frameworks through which we might seek accountability for such human treatment, such that the brutality is continued - revised and displaced - in, for instance, the extra-legal procedural antidote to the crime. We see the operation of a capricious proceduralism outside of law, and the production of the prison as a site
for the intensification of managerial tactics untethered to law, bearing no relation to trial, to punishment, and to the rights of prisoners. We see, in fact, an effort to produce a secondary judicial system and a sphere of non-legal detention that effectively produces the prison itself as an extra-legal sphere maintained by the extra-judicial power of the state.
It may seem that the normative implication of my analysis is that I wish the state were bound to law in a way that does not treat the law merely as instrumental or dispensable. This is true. But I am not interested in the rule of law per se, but in the place of law in the articulation of an international conception of rights and obligations that limit and condition claims of state sovereignty. I am well aware that international models can be exploited by those who exercise the power to use them to their advantage, but I think that a new internationalism must nevertheless strive for the rights of the stateless, and for forms of self-determination that do not resolve into capricious and cynical forms of state sovereignty. A mode of self-determination for any given people, regardless of current state status, is not the same as the extra-legal exercise of sovereignty for the purposes of suspending rights at random. As a result, there can be no legitimate exercise of self-determination that is not conditioned and limited by an international conception of human rights that provides the obligatory framework for state action. I am, for instance, in favor of Palestinian self-determination, and even Palestinian statehood, but that process would have to take place supported by, and limited by, international human rights. Similarly, I am even more passionate about Israel giving up religion as a prerequisite for the entitlements of citizenship, and believe that no contemporary democracy can and ought to based itself on an exclusionary conditions of participation, such as religion. The Bush administration has broken numerous international treaties in the last two years, many of them having to do with arms control and trade, and many of these abrogations took place prior to the events of September 11th. Even the U.S.’s call for an international coalition after those events was one that presumed that the U.S. would set the terms, lead the way, determine the criterion for membership, and lead its allies. This is a form of sovereignty that seeks to absorb and instrumentalize international coalition, rather than submit to a self-limiting practice by virtue of its international obligations. Similarly, Palestinian self-determination will be secured as a right only if there is an international consensus that these are rights to be enforced in the face of a bloated and violent exercise of sovereign prerogative on the part of Israel. My fear is that the indefinite detainment of prisoners on Guantanamo, where no rights of appeal will be possible within federal courts, will become a model for the branding and management of so-called terrorists in various global sites where no rights of appeal to international rights and to international courts will be presumed, and that we will see the resurgence of a violent and self-aggrandizing state sovereignty at the expense of any commitment to global cooperation that might support and radically redistribute rights of recognition for who is human. We have yet to become human, it seems, and now that prospect seems even more radically imperilled, if not, for the time being, indefinitely foreclosed.
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