Resisting
Guantanamo:
Rights
At the Brink of Dehumanization
Muneer I. Ahmad*
The Supreme Court’s June 2008 decision in Boumediene v. Bush,
granting constitutional habeas corpus rights to terrorist suspects at
Guantánamo Bay, appeared to usher in a rights moment in which legal advocacy
achieved transformative results.
But the history of rights-based litigation at Guantánamo suggests that
such victories often are fleeting, with court pronouncements failing to produce
the meaningful change—freedom of prisoners, closure of
Guantánamo—expected of such landmark decisions. This reflects not simply a failure of the courts, but a
limitation of rights in the face of extreme state violence.
This Article argues that the work of rights—and
of lawyers—at Guantánamo is best understood not as an example of
transformative legal practice, but as a form of resistance to
dehumanization. Guantánamo has
proven to be a project of dehumanization, achieved through three forms of erasure
of the prisoners’ humanity: cultural erasure through the creation of a
terrorist narrative; legal erasure through formalistic legerdemain; and
physical erasure through torture.
Because Guantánamo was defined by the Administration as rights-free, it
placed the very value of rights-based advocacy in doubt, raising the question:
Why adopt a rights-based strategy in a rights-free zone? Drawing on the author’s experience
representing a Guantánamo prisoner, the Article considers various theories of
rights, concluding that rights at Guantánamo may not be able to achieve the
transformative results of prisoner freedom or prison closure, but nonetheless
do the important work of maintaining prisoner humanity. A comparison between the rights-based
litigation brought by the prisoners’ lawyers and the hunger strikes engaged in
by the prisoners themselves illuminates the nature of such resistance, its
potential, and its limitations.
Table
of Contents
I. The Dehumanization
Project of Guantanamo: Cultural and Legal Erasure
A. Rights In
Context, Law in Narrative
B. The Cultural Erasure of the Human: An Iconography of
Terror
C. Cultural Erasure Through Normalization: Welcome to
Guantánamo
D. The Legal Erasure of the Human: “Enemy Combatants” and the Law of Guantánamo
II. Techniques of Legal
Erasure: Legal Absurdism and Radical Indeterminacy
A. Legal Erasure Through Legal Absurdism: The Military
Commissions
B. Legal Erasure Through Radical Indeterminacy
1.
The Indeterminacy of “Enemy Combatant”.
2. The Indeterminacy of “War Crime”
III. Arguing Rights
in a Rights-Free Zone: Tactics, Strategies, and Theories
A. Rights Tactics and Rights Strategies
IV. Resistance Reconsidered:
The Hunger-Striking Prisoner and
the Rights-Asserting Lawyer
When the Supreme Court issued its
decision in Boumediene v. Bush in
June 2008—the latest of several cases regarding the rights of terrorist
suspects held at Guantánamo Bay—it was hailed by progressive commentators
and human rights advocates as a landmark in rights jurisprudence.[1] Holding that the Guantánamo prisoners
possess a constitutional right to challenge the legality of their detention
through the writ of habeas corpus, Justice Kennedy reached for appropriately
lofty language, stating, “The laws and
Constitution are designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our system they are
reconciled within the framework of the law.”[2] Indeed, the pronouncement that a
provision of the Constitution extended to noncitizen wartime prisoners held
outside of the sovereign United States was breathtaking, particularly in the
face of six years of government insistence that the prisoners at Guantánamo had
no rights whatsoever, and could be held indefinitely, even for life, without
charge or meaningful opportunity to contest their treatment or detention. It was a rebuke to the Executive’s
claims of outsize authority, and, the Court told us, a re-assertion of the
supremacy of law. It was a rights
moment. Or so it seemed.
For many of us who have represented
prisoners at Guantánamo, the promise of Boumediene
felt eerily familiar. While
commentators, the press, and even some critics argued that the Court’s holding
that the prisoners could challenge the legality of their detention augured the
closure of Guantánamo, which opened as an interrogation and detention center in
2002, few prisoners’ advocates were holding their breath. In 2004, in the case of Rasul v. Bush,[3]
the Court similarly had held that the prisoners had a right of habeas corpus,
and yet, four years on, not a single prisoner had had a meaningful opportunity
to contest his detention. The same
is true as of this writing. Like Boumediene, commentators greeted Rasul as a game-changing decision, and
enthusiasm and optimism spread among advocates and prisoners alike that the
decision would bring law, and therefore justice, to the seemingly lawless zone
of Guantánamo. In this way, Rasul seemed an important example of
transformative legal practice—that is, a fundamental change in power
arrangements, brought about through law—but the Executive managed to
frustrate that decision for years.
Importantly, Rasul was decided
on statutory grounds while Boumediene
was squarely constitutional.[4] Nonetheless, for many of us, and for
the prisoners, the euphoria of Boumediene
was tempered by the experience of Rasul,
for Rasul taught the vast space
that can exist between judicial decree and executive action. The problem did not lie with Boumediene—the legal victory was
resounding—but with the limitations inherent to legal victory, and the
limitations inherent to rights.
What was clear the moment the case was
decided, and what has been borne out in the months of litigation in hundreds of
cases since, is that Boumediene alone
could not close Guantánamo, but could only narrow the space in which it is
allowed to operate. Now that the
headlines have faded, the rights moment of Boumediene
has dissolved into the less visible daily practices of the Guantánamo lawyers,
human rights advocates, and other allies, where the assertion of rights is a
necessary but inadequate step toward justice for the prisoners. We see now another iteration of what we
experienced after Rasul: that the
work of rights is important but limited, and that the mere existence of rights
is not enough to do justice.
This Article is about the work that
rights do, and the work of the lawyers who assert them on their clients’
behalf, particularly in the face of inordinate state violence, as is the case
with Guantánamo. I write this
story of Guantánamo based on my experiences of nearly three years of
representing a prisoner there.[5] While commentators can point to an
unbroken record of legal victories in Guantánamo cases at the Supreme Court,
the view from the prisoners’ perspective is quite different, and throws into
question the claim of transformative legal practice that the Court cases might
otherwise suggest. This is not to say that the lawyering has itself been
a failure. Rather, I argue that
instead of expecting rights-based legal contest at and around Guantánamo to
produce transformative results, we might better understand it as a form of
resistance to dehumanization. Such
a reframing of the Guantánamo litigation invites comparison with other forms of
resistance, and helps explain both the power and the limitations of legal
practice in extreme instances of state violence.
When placed in a human
rights frame, Guantánamo is often described in terms of the government’s denial
of rights to the prisoners, but equally important has been the denial of their
humanity. Guantánamo has been a
project of dehumanization, in the literal sense; it has sought to expel the
prisoners—consistently referred to as “terrorists”—from our shared
understanding of what it means to be human, so as to permit, if not
necessitate, physical and mental treatment (albeit in the context of
interrogation) abhorrent to human beings.
This has been accomplished through three forms of erasure of the human:
cultural erasure through the creation of a terrorist narrative; legal erasure
through formalistic legerdemain, epitomized by the government’s invention of
the “enemy combatant” category; and physical erasure through torture.
While these three
dimensions of dehumanization are distinct, they are also interrelated, and all
are pervaded by law, and more specifically, by rights. This is to say that law has been
deployed to create the preconditions for the exercise of a state power so
brutal as to deprive the Guantánamo prisoners of the ability to be human. In this way, Guantánamo recalls Hannah
Arendt’s formulation of citizenship as the right to have rights.[6] By this she meant that without
membership in the polity, the individual stood exposed to the violence of the
state, unmediated and unprotected by rights. The result of such exposure, she argued, was to reduce the
person to a state of bare life, or life without humanity. What we see at Guantánamo is the
inverse of citizenship: no right to have rights, a rights vacuum that enables
extreme violence, so as to place Guantánamo at the center of a struggle not
merely for rights, but for humanity—that state of being that
distinguishes human life from mere biological existence.
In order to
better understand the work that rights do, this Article explores why prisoners’
advocates, including myself, adopted a rights-based advocacy strategy in an
environment defined explicitly by the absence of rights. Since the first prisoners arrived at
Guantánamo, the Administration’s position has been that they lack any rights
whatsoever, under any source of law.
Thus has the Administration attempted to define a rights-free zone, through
a manipulation of rights which seemed demonstrably political. And yet, despite the overwhelming
evidence of politics animating law at Guantánamo, as advocates we made a
conscious decision to engage in rights-based argument, and “rights talk”[7]
more generally. This approach
finds some support in the work of rights scholars (and critical race theorists
in particular) regarding the continuing vitality of rights-based approaches and
the promise of “critical legalism”[8]
or “radical constitutionalism”[9]—the
very kinds of progressive constitutional optimism that the Rasul and Boumediene
decisions inspire. But the subsequent litigation history demands further
inquiry into the political, cultural, jurisprudential and strategic value of
arguing rights in the historical moment and place of Guantánamo.
I argue
that while we might hope for rights to obtain transformative effect—to
close Guantánamo, for example, or to free those who are wrongfully
imprisoned—at Guantánamo and in other places of extreme state violence,
rights may do the more modest work of resistance. Rather than fundamentally reconfiguring
power arrangements, resistance slows, narrows, and increases the costs for the
state’s exercise of violence.
Through resistance, new political spaces may open, but even if they do
not, the mere fact of resistance, the assertion of the self against the
violence of the state, is self- and life-affirming. It is, in short, a way of staying human. This, then, is the work that rights do:
when pushed to the brink of annihilation, they provide us with a rudimentary
and perhaps inadequate tool to maintain our humanity.
In Part I of this Article,
I discuss the social erasure of the Guantánamo prisoners through the creation
of a post-September 11 terrorist narrative, or what I term an iconography of
terror, and the legal erasure of the prisoners through the creation of the
“enemy combatant” category. I
contextualize these discussions with narrative descriptions of the place and
space of Guantánamo, which I argue are necessary to understand the contextual
nature of rights and rights claims, and the integral connection between law and
narrative. In Part II, I deepen
the discussion of legal erasure through critique and analysis of my
representation of a teenaged Canadian Guantánamo prisoner, Omar Khadr, in
military commission proceedings, and through a doctrinal analysis of the
shifting meanings of core legal terms in the Guantánamo legal regime. In so doing, I suggest how the
experience of lawyering in and around Guantánamo helped to prove up its lawless
nature.
Part III considers the
tactical, strategic, and theoretical values of adopting rights-based legal
approaches in the rights-free zone of Guantánamo, paying particular attention to
the value of rights as recognition, and ultimately arguing the importance of
rights as a mode of resistance to state violence. Finally, in Part IV, I build upon this discussion of resistance
by considering direct forms of resistance in which prisoners themselves have
participated. In particular, I suggest the hunger strike as a
paradigmatic form of prisoner resistance, and argue the lawyers’ rights-based
litigation and the prisoners’ hunger strikes share a conceptual understanding
of the relationship between rights, violence and humanity. I conclude with reflections on the
value and limitations of reframing the work of the Guantánamo prisoners’
lawyers as nothing more, but also nothing less, than resistance. I suggest that neither the resistance
of the lawyers nor that of the prisoners may be enough to gain the prisoners’
freedom, but that they are nonetheless essential when, as at Guantánamo, state
violence is so extreme as to attempt to extinguish the human.
Throughout the
Article, I insist upon an understanding of Guantánamo in both material and
theoretical terms. Six years after
its opening as an interrogation and detention center, Guantánamo today is
frequently understood more for its symbolism than for the actual events that
have transpired or lives that have been transformed there. Politically and culturally,
domestically and internationally, Guantánamo is a stand-in for torture, abandonment
of the rule of law, and the general threat to civil liberties posed by the “war
on terrorism.” In this way, even
among its critics, Guantánamo has been reduced to allegory. But as important as its lessons
Guantánamo are for U.S. law and policy—and they are indeed
critical—they must be rooted in the lived experiences of those who have
inhabited and endured the real-world of Guantánamo. For example, torture at Guantánamo is not simply a question
of legal memoranda or an exercise in line-drawing, but a project of state
violence enacted upon, and realized in, the human body. In this regard, the most important laws
relating to torture are the laws of physics, as these are the governing
principles and limiting factors in the exercise of force by one body against
another.
At base, Guantánamo is
a material, and more specifically a human project, enacted upon and through the
bodies of those imprisoned there.
Thus, the story of Guantánamo I seek to tell here is of erasure of the
human—cultural, legal, and physical—and equally important,
resistance to such erasure, itself enacted upon and through the humanity of the
Guantánamo prisoners.
I. The Dehumanization Project
of Guantanamo:
The purpose of Guantanamo is to destroy people.
--Jumah al Dossari[10]
A. Rights In Context, Law in Narrative
I have
visited the U.S. detention and interrogation center at Guantánamo Bay about a
dozen times since the fall of 2004.
On one visit, in December 2005, I met with my then-client, Omar Khadr,
at that time one of about 400 prisoners[11]
at Guantánamo, in a small trailer inside one of the prison camps.[12] Typically when we met Omar, it was in a
place called Camp Echo, a cluster of bungalow-style buildings set around the
perimeter of a fenced-in compound.
The rooms in which we met were divided, with a very small cell on one
side of a chain metal wall, and an empty space on the other, furnished with
only a folding table and a couple of plastic chairs. There was one vertical, opaque slit window by the door,
conjuring the outdoors but not actually permitting sight of it. The floors and walls were a dingy
institutional white, an air conditioner droned endlessly, keeping the room
over-cooled. To sit there for a
few hours at a time, as we typically did, was claustrophobic and at times
despairing.
But the
room in which I met Omar this time was different. The walls had wood paneling and there was an oriental rug on
the floor. I sat in an overstuffed
couch and Omar sat in a recliner.
There was a coffee table, a television and DVD player, and a mini-refrigerator
stocked with sodas and snacks.
Although it did so crudely, the space was designed to mimic a typical
Middle Eastern living room. There
was even a hookah in one corner.
Only after several minutes in this altered space did I realize we were in
a high-end interrogation room. The
camera in the ceiling and the metal eyehooks in the floor, to which prisoners
are chained, were the giveaways.
It was a reminder that Guantánamo is built upon deception, that even
what appears normal—or especially what does—is artifice. The high-end interrogation room exists
in opposition to the low-end interrogation rooms—rooms I have never been
allowed to see—those spaces designed not for momentary comfort, but for
threats of permanent pain. Omar
had been in the faux living room before, but he had also been in those other
rooms, subjected to harsh interrogation, and even torture, including one
instance, at the age of 16, when soldiers used him as a human mop—lifting
him off the ground, pouring solvent on him, and using his body to clean the
floor on which he had urinated because he hadn’t been permitted a bathroom
break. In those other rooms, he
was threatened with rendition to other countries, where he was told he would be
raped by older men.[13]
These two
interrogation rooms, the one seemingly normal, the other the site of deliberate
dehumanization, exist side-by-side, their histories so conjoined as to question
whether they are in fact separate spaces, or are instead mutually constitutive
of a single reality.
*
Despite
aspirations across the political spectrum to identify a universalist source of
rights, rights and our understanding of them emerge from specific political,
cultural, and historical moments.
As a matter of theory, we might locate rights in some ontologically
ethereal space, as natural law attempts, but in practice, we can only discern
the emergence of rights—their arrival on the scene—in the
particularity of historical place and time. Similarly, the substantive content of rights, their material
expression through law, has proven dynamic and specific. As Austin Sarat and Thomas Kearns have
observed, “Rights, which are claimed to be natural and unalienable, do not
spring fully formed at the conclusion of some philosophical argument or
analysis; instead, they take a long time to be realized and instantiated.”[14] So, too, do those instantiations vary
over time, and gain force through historical accretion.[15] Elizabeth Schneider similarly has
argued the dialectical relationship of rights and politics.[16] Finally, the coercive dimension of
rights is perpetually contested, taking the form, variously, of questions such
as, “Is there a right without a remedy?” or “Are rights self-executing?”.
With this
understanding of the contextual specificity of rights in mind, I situate my
discussion not merely in the historical period inaugurated by September 11th,
and not merely in the governance regime of Guantánamo Bay, but in the even more
particularized experience of representing a Guantánamo prisoner in legal
proceedings. In this way, I
explicitly reject the role of legal historian, whose work is to look at the
development of law with the benefit of distance, time, and personal detachment. Instead, I embrace the role of
accidental legal ethnographer.
Informed by the methodological principles of social anthropology,[17]
I am in this story a participant observer, seeking to chart, document, and
interpret the legal and cultural topographies of Guantánamo from the inside
out, through a process of information gathering and analysis that is only
possible through social engagement in the very legal and cultural systems I am
studying. I declare openly my
subjectivities as an advocate, but subjectivity is inherent in all ethnography;
it is the price one pays for the qualitative and relational analysis of
participant observation.
Admittedly,
mine is a deeply imperfect methodology.
I did not set out to research and write an ethnography of Guantánamo;
rather, I intended to be an advocate there. And so in both intention and practice, my claims to
ethnographic method are perhaps more gestural than rigorously faithful. Nonetheless, I insist upon situating
the question of prisoner’s rights within the “social text”[18]
of Guantánamo, and through the use of narrative, attempt to provide the kinds
of thick description of Guantánamo—its people, institutions, histories,
and ambitions—that enable meaningful cultural and legal inquiry.
It is,
however, not only the historical specificity of rights that compels such an
approach. Law itself is dependent
upon narrative for its meaning.
Narrative renders law from doctrine to praxis, law in stasis to law in
action, abstract hermeneutic to the friction of real-world substantiality. Robert Cover described law as
semiotic—that is, a system of signification—rather than a
determinate corpus of self-defining rules.[19] On its own, then, law is
indeterminate. As Cover argued,
“law is a resource in signification that enables us to submit, rejoice,
struggle, pervert, mock, disgrace, humiliate or dignify.”[20] It is narrative context that fixes the
meaning of law, legal institutions, doctrine, and legal practice, for law is
fundamentally and inextricably embedded in narrative. As Cover, wrote, “No set of legal
institutions on prescriptions exists apart from the narratives that locate it
and give it meaning. For every constitution there is an epic, for each
decalogue a scripture. Once understood in the context of the narratives that
give it meaning, law becomes not merely a system of rules to be observed, but a
world in which we live.”[21]
Let me be
clear about what I mean by narrative.
Specifically, I want to distinguish narrative from mere story. The narrative with which I am concerned
is the social construction of meaning in human behavior, that is both
antecedent to and constitutive of law.
Of course, in any historical moment, multiple narratives exist
simultaneously, pitched in implicit contest with one another, each promising
the fullest explanation of our times.
In this sense, narrative is a vision of the world, a story not just of
plot and characters, but of what forces and motivations animate people and
events.[22]
I say that
narrative is both antecedent to and constitutive of law because it is through
the meaning-making process of narrative construction that law itself acquires
meaning.[23] We can think of narrative as the
architecture of context, claiming and defining specific spaces, evoking
histories, giving expression to social and cultural influences, arising from
and expressing a specific politics, and fusing a normative vision with the
materiality of the real world.
Narrative makes argument, around law and through law, rooting itself, as
Cover wrote, in normative worlds.[24] To understand legal dispute, one must
comprehend the narrative contest it inhabits. And to understand legal victory, one must recognize the
triumph of one narrative vision over another.
My recourse
to narrative in this Article, then, is itself argument: a claim to the
multiple, conflicting, projected understandings of Guantánamo as place and
people, historical time and historical event, ideology and belief. I seek ultimately to illuminate the
legal and rights contest of Guantánamo, for which narrative is not merely a
convenient device, but an indispensable and constitutive methodology.
B. The Cultural Erasure of the Human: An Iconography of Terror
From the
moment Guantánamo opened as an interrogation center for terrorist suspects, the
Administration has described the prisoners as “the worst of the worst,” as
unfathomably dangerous, and as trained and hardened killers.[25] As the then-Chairman of the Joint
Chiefs of Staff declared in January 2002, these are the kind of people who
would chew through the hydraulic cable of a C-17 cargo plane to bring it down.[26] The government coupled these characterizations
with menacing imagery, as the Pentagon released pictures of men being
transported to Guantánamo while strapped to the floor of a plane, heads
covered, hands shackled, an American flag draped above, and still more pictures
of men in orange jumpsuits, crumpled on the ground behind chain-linked fence.[27] Taken together, these images helped to
construct a state iconography of the “war on terrorism.”[28] They told a narrative of transnational
forces of evil committed, with fanatical zeal, to the destruction of the U.S.,
to which the U.S. then responds with military and moral superiority, thereby
subduing the enemy, neutralizing him, rendering him abject, and, under the
vigilant eye of America, ensuring that he remains broken and contained.
In this regard,
we might think about the value that Guantánamo serves, international
condemnation notwithstanding, in purchasing domestic faith in the belief that
the homeland is secure. Guantánamo
is evidence of the government’s success—visible but not too visible,
close but not too close—in subduing evil. Through partial visibility, we are encouraged to see a
government ensuring our safety; through partial occlusion, we are relieved of
the knowledge of the methods used to achieve such security. In this way, Guantánamo fills an
existential need for security.
That we obtain such security through the quarantine of darkened bodies
is a familiar compromise—at Guantánamo, as well as in the territorial
U.S.—and one that is not easily disturbed. Indeed, the very ground on which prisoners were first kept
at Guantánamo was previously used by the U.S. government to detain Haitian
refugees in the 1990s.[29] Closer to home, the over-incarceration
of African Americans and Latinos in U.S. prisons, promises safety through
racial containment.[30] And it was this exact bargain of
securing the nation through incarceration of a racial minority, uninvited to
the bargaining table, that led to the incarceration of Japanese Americans
during World War II.[31]
The dark,
bearded, turbaned men of Al Qaeda are central figures in the post-9/11 state
iconography, and though pictures of the prisoners at Guantánamo as they now
appear have not been released, it seems fair to say that these essentialized
notions of the terrorist[32]
are what Guantánamo is meant to conjure: it is men like these, we are meant to
believe, who are detained there.
My former
client, Omar Khadr, was a fifteen-year old boy when he was taken into U.S.
custody. When Omar was taken to
Guantánamo, he could not yet grow a beard. Indeed, he had not completed puberty. As scientific research on adolescent
development tells us, his brain physiology was still in a state of flux, the
biological bases for impulse control and exercise of judgment still inchoate.[33] Now, at age 21, Omar, a Canadian
citizen, has spent nearly one fourth of his life growing up at Guantánamo Bay.
The state
is as dependent upon narrative for the instantiation of law as are those who
would contest state power.[34] Precisely for this reason, narratives
of the state are instruments of violence.[35] Their totalizing, explanatory claims
bludgeon multiple and divergent histories, the wave of master narrative washing
over the granular, specific accounts of 400 individual human beings. The task of the prisoners’ lawyers has
been to surface these alternative accounts, thereby contesting the blanket
assertion of state power through the exercise of narrative autonomy.
At
Guantánamo the state narrative was presumptively legitimate because it did not
begin there, but instead derived from and helped to reinforce a racialized
social construction of the terrorist that had already taken hold in the
aftermath of 9/11, and that has its antecedents well before. Immediately following the terrorist
attacks, the Administration deployed a set of racially directed immigration
enforcement and detention practices which, coupled with thousands of incidents
of hate violence—including 22 murders—helped to consolidate the
disparate identities of Arabs, Muslims, and South Asians into a newly minted
monolithic category in the American racial lexicon: the “Muslim-looking”
person. [36] Through these state and cultural
practices, the Muslim and the terrorist became one in the same. As Leti Volpp has argued, this racial
category was inherently oppositional to a newly consolidated post-9/11 national
identity, and acted to expel Arabs, Muslims, and South Asians from the cultural
or affective (non-formal) citizenship they might otherwise have enjoyed.[37]
“Muslim-looking”
is a peculiar category, as it collapses phenotype and faith, and conjures a
literal face of religion—that is, we know what a Muslim (and therefore a
terrorist) looks like. Although
this category is ostensibly about religion, and embraces various visual cues,
such as turbans, beards, and veils,[38]
it opens a space hovering somewhere between religion and race, and indeed, has
significant racial valance. The
Muslim is different, and deficient, not only in appearance, but in
constitution. The menace is not
merely the God who is worshipped, but the broader set of cultural practices,
modes of living, and systems of belief that are attributed monolithically to
more than a billion people. It is,
therefore, the total embodiment of the Muslim—the Muslim body—that
is constructed as an inherent mortal threat.
The power
of the Muslim-terrorist equation is in expelling the Muslim terrorist suspect
not only from the national polity, but from the civilized world. The seeming incomprehensibility of the
9/11 attacks renders the terrorist suspect monstrous,[39]
thereby necessitating a strategy of containment. Thus the neo-Orientalist[40]
formation of the “Muslim-looking” category in the aftermath of 9/11 helped to
make Guantánamo not only possible, but necessary.
This
phenomenon—the creation of a monster who not only exists in opposition to
the civilized, but is invented in order to establish the liberal bona fides of
the civilized—is painfully familiar, especially for its invocation of the
Muslim subject. As Sartre wrote in
the context of French racism toward Algerian colonial subjects, “One of the
functions of racism is to compensate the latent universalism of bourgeois
liberalism: since all human beings have rights, the Algerian will be made a
subhuman.”[41] The existence of the liberal, civilized
West, therefore, required the invention of the illiberal, barbaric East[42]: “the only way the European could make
himself man was by fabricating slaves and monsters.”[43] The post-September 11th iconography
thus easily took hold in the entrenched understandings of the Muslim subject.
Omar Khadr
was captured in Khost, Afghanistan, in July of 2002, following an intense
firefight around the house in which he was living.[44] Several hours of combat and two
five-hundred pound bombs killed the other occupants, who were believed to be Al
Qaeda fighters, but Omar survived.[45] The government alleges that at the
conclusion of the firefight, Omar arose from the rubble of the destroyed house
and threw a grenade that killed a U.S. soldier.[46] While the Administration claims the
authority to detain those at Guantánamo indefinitely and without charge as
“enemy combatants,”[47] it has
nonetheless chosen to try a small number of prisoners, including Omar, for
alleged war crimes in military commissions.[48]
Hovering in
the background of the formal charges against Omar are a variety of suspicions
and allegations about his family.[49] His father, in particular, is suspected
by the U.S. to have had terrorist ties, and his family is deeply unpopular in
Canada. Taken together, the formal
and informal charges against Omar assimilate him into a barbaric clan of cold,
calculated murderous men, finding a special place for him in the government’s
iconography of terror. In this
narrative, he is terror’s child, thus subtly reinforcing the notion of the
Muslim terrorist suspect as constitutively monstrous, so much so that his
children are natural-born terrorists, too.
C. Cultural Erasure Through Normalization: Welcome to Guantánamo
The central
cultural project of Guantánamo has been to normalize what is, on first
inspection, extraordinarily aberrant, and to render intelligible the seemingly
bizarre.
My
colleague and co-counsel Rick Wilson and I made our first trip to Guantánamo in
October 2004. Over the course of
nearly a dozen subsequent visits, my experience and memory of the place has
become routinized, but that first trip was fraught with anxiety, anticipation,
and fear of the unknown. Only a
handful of habeas lawyers had visited the island before us,[50]
leaving to our imagination what a military interrogation and detention center
in a law-free zone must look like.
Into that imagined world, I projected myself, a brown-skinned Muslim
entering a facility whose preoccupation was the interrogation and detention of
brown-skinned Muslims, thus adding identity-based anxiety to our many other
fears.
Our travel
to Guantánamo did nothing to disabuse our expectations of a dark and secretive
island. We flew to Ft. Lauderdale,
and from there boarded a 19-seat turbo-prop charter flight on Lynx Air (later
flights would be via a Lynx competitor, optimistically named Air
Sunshine). The flight was full, so
full in fact, that the excess weight necessitated a refueling stop on Exuma
Island. Stooping under the plane’s
low roofline to arrive at my seat, I eyed my fellow passengers with suspicion,
as I wondered what reputable business they could possibly have at
Guantánamo. Only when we arrived
did I come to understand that the physical plant of the base, and many of its
services, rely on contractors for their operation.
The flight
was long, loud, and uncomfortable.
We were less than 500 miles away, but the flight took four hours: since
the U.S. does not have diplomatic relations with the Castro government, we
could not fly over Cuban airspace and therefore had to detour around the
eastern peninsula of the island.
As I sat wedged against the window, the two small engines blaring as we
hurtled toward the dark mystery of Guantánamo, I recalled the iconography of
the prisoners’ transport to the island—heads hooded, wrists and ankles
shackled, sitting on the floor of a cavernous cargo plane with nylon straps
tethering them to one another and to the sides of the plane.[51] This would be the first of many
comparisons I would draw between my condition and Omar’s, an early signal of
the experiential and situational distance between us.
Our
convoluted itinerary reflected the spatial dimension of the government’s
detention project. It was no
accident that visiting the base was difficult, but instead was a core design
element of Guantánamo. The
geographic remoteness of the base from the territorial United States reflected
and facilitated the legal and psychic dispossession that the government
intended Guantánamo to achieve. In
this way, the prisoners were deliberately lost at sea, held outside of and inaccessible
to the realm of the normal, as part of a twofold strategy to free the hand of
the government—both literally and figuratively—and to induce
despair among the prisoners.[52]
By the time
we arrived, night had fallen. We
emerged onto the tarmac with floodlights illuminating the humid air and armed
soldiers, only slightly older than our client, ready to greet us. We gathered our luggage, which was then
searched, and then met our liaison, a young army corporal, who accompanied us
to the dank rooms of a small motel, called the Combined Bachelor Quarters
(CBQ), where we would be staying.
In a matter of minutes, Guantánamo shifted from the realm of the
imagination into our lived experience.
That night, our theoretical understanding of the place stood poised for
collision and reconciliation with its real-world materiality.
Despite our
initial disorientation, days at Guantánamo are quickly routinized, and with
routinization comes normalization.
A ferry takes you across Guantánamo Bay itself, from the Leeward to the
Windward side. For fifteen or
twenty minutes, it is the calm beauty of the Caribbean. Then, arriving at the other side, you
encounter a giant desalination plant (necessary because Castro cut off the
supply of fresh water to the base).
A short drive up a winding hill, you enter what has been consciously
designed to mimic a small town in 1950s middle America. A single road, Sherman Avenue, runs
from one end of the base to the other, along which one finds an outdoor movie
theater, evocative of drive-ins of a bygone era. There is a McDonald’s, an A&W Root Beer, a bowling alley
and a “public” library. There is a
large laundromat, and the Navy Exchange—a combined grocery and department
store. On our first visit there,
it was impossible to find a good cup of coffee, but they have since begun
serving Starbucks at one small outlet.
There are athletic fields and housing developments named West Iguana and
Tierra Kay that look like suburban subdivisions. There is even a school for the kids on base. The speed limit is 25 miles per
hour—strictly enforced, in large part to protect the iguanas[53]—which
reinforces the sensation that time goes slowly at Guantánamo.
But the aspiration of small town
normalcy stands in permanent tension with the dystopic detention camps erected
just a few miles from the town center.
To get to the camps, one winds through the dry hills of the base, and
after cresting the last of these, a series of low-slung buildings appear on the
horizon, the shimmering waters of the Caribbean behind them. From a distance, they might be mistaken
for a luxury resort, but as one approaches, the multiple checkpoints,
concertina wire, and guard towers betray that momentary delusion, and the
reality of the camps, their maximum security and their deliberate despair,
overwhelm the senses.
Power is
exercised at Guantánamo not only through spatial demarcation, but through
administration of “indigenous” ritual.
In Muslim countries, the call to prayer is heard five times day. In the old days, a muezzin ascended a
steep minaret to make the call.
Today, it is broadcast from loud speakers attached to the minarets. At Guantánamo, too, the call to prayer
is heard (though prisoners have complained that is not broadcast all five
times, and that the government sometimes deliberately disrupts it). But what is more jarring is to see that
the recorded call is broadcast from loud speakers not atop minarets, but
attached to the guard towers encircling the camps, each one staffed by armed
guards, and each emblazoned by an American flag. The prisoners’ call to prayer issues nearly from the barrel
of their captors’ guns.
Thus is
Guantánamo built deliberately upon contradiction, these two worlds existing
side-by-side, the one self-consciously normal, the other a carefully
constructed project of dehumanization.
The town’s aspiration of normalcy is made all the more urgent by the
aberrance of the camps. The
service members who work in the camps but spend their off hours in the town
cross between these two worlds daily, traversing the dividing line known as
“the Wire.” The prisoners, of
course, are forever delimited; their containment enables the service members’
freedom, and the barbarity of the camps helps to constitute the normalcy of the
town.
The
normalcy of Guantánamo is called further into question—or perhaps is
re-established—when one begins to appreciate its racialized labor
market. Almost all of the laborers
at the base—the janitors and food service staff, the landscapers and
maintenance workers—are Filipino, Haitian, and Jamaican
migrants—referred to as third country nationals, or TCNs[54];
the reliance on migrant workers for low-wage service industry labor in the U.S.
extends to Guantánamo. It is a
reminder that the penal colony that is Guantánamo Bay is indeed colonial. Moreover, it inaugurates recognition of
a pervasive yet complex racial economy at Guantánamo, where black and brown
migrant labor services a multi-racial U.S. military that in turn incarcerates
and interrogates Muslim men. In
this regard, even though we were in the legal netherland of Guantánamo, it
seemed impossible to escape the multiple taxonomies of American citizenship,
and in particular, their racial, national, and labor[55]
dimensions.
D. The Legal Erasure of the Human: “Enemy Combatants” and the Law of
Guantánamo
Is there
law at Guantánamo? By now, the
executive, legislative, and judicial actions relating to Guantánamo have been
thoroughly documented by others, beginning with the Presidential Military Order
approving the detention of “enemy combatants” and trials by military
commission,[56]
and the legal memoranda purporting to except the prisoners from the protections
of the Geneva Conventions[57]
and approving the use of interrogation techniques previously considered
torture.[58] So, too, has the relevant Supreme Court
jurisprudence—Rasul v. Bush,[59]
Hamdi v. Rumsfeld,[60]
Hamdan v. Rumsfeld[61]—been
explored, as well as the lower court actions and Congress’s intervention in the
form of the Detainee Treatment Act of 2005[62]
and the Military Commissions Act of 2006.[63] While the Court’s decision this past
Term in Boumediene v. Bush[64]
poses a set of new doctrinal and theoretical challenges, rather than rehearse
previous discussions of the caselaw or suggest new ones here, I seek to explore
a more fundamental question: despite the repeated claims by critics that
Guantánamo is a law-free zone, does this corpus of state action by all three
branches not constitute an abundance of law at Guantánamo? Rather than Guantánamo suffering from a
lack of law, is it possible that law is all around?
Answering
this question requires a summary discussion of the creation and development of
the Guantánamo governance regime.
While that regime is multi-faceted, and has evolved over time, at its
inception it sought to detain and interrogate indefinitely, without charge, and
without opportunity for judicial review, any non-U.S. citizen in the world whom
the Executive deemed to be an “enemy combatant.” In addition, the regime contemplated the trial by military
commission of select “enemy combatants” for alleged war crime offenses, under
rules of the Executive’s making.
Notably, the “enemy combatant” construct was a legal invention of the
Administration, distinct from the presumptive “prisoner of war” status to which
the prisoners otherwise would have been entitled, the intended effect of which
was to remove the prisoners from the ambit of both the Geneva Conventions and
the U.S. courts. In this way, in
the eyes of the law, the prisoners were made invisible. Hidden on a remote and mysterious
island—which was made inaccessible to lawyers and human rights advocates
for nearly two years—the prisoners were nearly erased.
Importantly,
the current moment is not the first time that the United States has argued that
Guantánamo is a rights-free zone.
Reviewing its use as a detention center for Haitian refugees in the
1990s, Gerald Neuman has described Guantánamo as an “anomalous zone,” in which
the United States argued that the Haitians “had no constitutional rights
whatsoever.”[65] That position
was accepted by the Eleventh Circuit,[66]
though rejected by the Second.[67] The result of this rights-free zone,
Neuman argued, was “a true reverse Carnival, a ruler’s festival of uninhibited
exercise of power”[68]:
The government ...
feeling unconstrained by law, responded with more severity than sympathy to its
unwelcome guests. The government
surrounded the camp with razor barbed wire, set out camp rules, and punished
infractions by confinement to the brig, after only the most rudimentary
procedures.... Although the government’s own physicians warned against
concentrating an immune-suppressed population [some of the detainees were
HIV-positive], the government overrode their advice.... An INS spokesman
dismissed concern for the detainees with the remark, “they’re going to die
anyway, aren’t they?”[69]
In this sense, while the current
incarnation of Guantánamo presents a particularly vivid example of a
rights-free zone, anomaly is no stranger to Guantánamo. The Haitian experience
presented a template for how rights could be stripped away, and recommended
Guantánamo for its combination of geographic proximity and jurisdictional
extraterritoriality. Perhaps more
frightening, as Neuman suggests, anomaly is no stranger to law, but instead
seems a familiar if episodic visitor.
The
creation of Guantánamo and its current status as an interrogation and detention
center for suspected terrorists consists of three overlapping components:
executive authorization, judicial contest, and congressional intervention. In the first instance, the idea of
Guantánamo was purely executive, and both arose from and helped to constitute a
“virulent strain of” the theory of the unitary executive.[70] A presidential order authorized the
apprehension and detention of terrorist suspects as “enemy combatants,”
anywhere in the world.[71] Informed by legal advice from within
the Executive Branch,[72]
the presidential order purported to exempt the Guantánamo prisoners from the
Geneva Conventions, the primary advantage of which was to enable the use of
“harsh interrogation techniques,” which otherwise would have violated the
Geneva Conventions’ prohibition on torture and cruel, inhuman, and degrading
treatment.
Second, and
perhaps most critical in the unfolding story of Guantánamo, has been the contest
for judicial involvement. As
suggested previously,[73]
the location of the interrogation and detention center at Guantánamo served
multiple strategic purposes. Among
them as the intention to evade the jurisdiction of U.S. courts. Thus, the principal, and enduring court
challenge regarding Guantánamo has not been with respect to the adjudication of
rights, but instead concerns the reach of the courts. In its first Guantánamo-related case, Rasul v. Bush, the Supreme Court held that the federal habeas statute
reached the prisoners at Guantánamo, thus repudiating the government’s claim of
extra-judicial authority.[74] In subsequent litigation in federal
district court, prisoners’ counsel sought to exercise their clients’ habeas
rights by demanding that the government state the legal and factual bases for
detention, and demanding a hearing in federal court in which to contest those
bases.[75] But such attempts at rights
contestation were quickly aborted, as the government adopted an exceptionally
narrow interpretation of Rasul. By the government’s account, Rasul stood for the proposition that the
habeas statute gave the federal courts jurisdiction over any Guantánamo
prisoner claims arising under their statutory or constitutional rights. But, the government argued, the
prisoners possessed neither statutory nor constitutional rights, and therefore
the courts could hear the cases but could not act; they could listen, but they
could not speak.[76]
Two federal
district judges divided on the question of whether the prisoners possessed any
enforceable rights.[77] Before the Court of Appeals decided the
issue, Congress intervened, at the Administration’s behest, passing the
Detainee Treatment Act (DTA),[78]
which amended the federal habeas statute and seemingly stripped the courts of
the jurisdiction found in Rasul.
As the
habeas litigation stalled in the Court of Appeals, the first challenge to the
Guantánamo military commission system rose to the Supreme Court in Hamdan v. Rumsfeld. The DTA was enacted after certiorari
had been granted in Hamdan but before
the case was heard, thus forcing the Court to consider the statute’s
jurisdiction-stripping provisions as a threshold matter. The Court disposed of the
jurisdictional issue expeditiously,[79]
and proceeded to the merits, rejecting the government’s argument that the
prisoners stood outside the Geneva Conventions, and instead finding that the
military commission system was unauthorized under the Uniform Code of Military
Justice and contrary to Common Article 3 of the Geneva Conventions.
The Rasul and Hamdan decisions are enormously important, both for their
willingness to resolve jurisdictional questions in the prisoners’ favor, and in
the case of Hamdan, to adjudicate
their substantive rights claims.
With Rasul, there has been a
tendency to describe, and lament, the case as “merely” jurisdictional. Indeed, the government’s position has
been that Rasul had no direct bearing
on the substantive rights of the prisoners, and that in fact they have none.[80] But even if merely
jurisdictional, Rasul is noteworthy
precisely because of the ease with which the withholding of jurisdiction could
have defeated the prisoners’ claims entirely. By finding jurisdiction to hear the prisoners’ cases, the
Court rejected a long tradition of upholding state action through the
deployment of jurisdictional rules.[81] Robert Cover decried this “apologetic
and statist orientation” of jurisdictional decisions for “prevent[ing] courts
from ever reaching the threatening questions.”[82] In this way, by Cover’s account,
jurisdictional disposal of a case was a means of upholding state
violence—and thereby doing state violence—while disclaiming
personal culpability of the judges involved.[83]
In Rasul, the Court resisted the state
violence of Guantánamo, concluding that while it may be geographically outside
the United States, it was not beyond the reach of the courts, or more simply,
it was not beyond. By recognizing
Guantánamo as within its realm, the Court helped to make it real; by bearing
witness through its finding of jurisdiction, the Court transported Guantánamo
from the netherworld of the imagination to the cognizable, demarcated, and
substantial world.
As the
post-Rasul litigation languished in
the lower courts—depleting the prisoners and their lawyers of the faith
in law inspired by the Supreme Court’s decision—the Court went a
significant step further in Hamdan. There, the Court passed quickly and
deliberately over the jurisdictional issues, determined to reach the
“threatening questions”. And
threatening they were: whether the prisoners had enforceable rights under U.S.
law, and whether they were protected by the Geneva Conventions. Just as Rasul repudiated the government contention that Guantánamo was
beyond the reach of the courts, Hamdan
established that prisoners—at least those few facing trial by military
commission—had certain enforceable rights. Thus did law intrude upon Guantánamo.
The significance
of the Hamdan decision can be
measured by the speed with which the Administration moved for Congress to overturn
it, which Congress did. With
enactment of the Military Commissions Act of 2006 (“MCA”),[84] Congress once more attempted to strip the courts of
habeas jurisdiction over Guantánamo, and authorized a new military commission
system to replace the one invalidated by the Court in Hamdan. The MCA is
remarkable in three ways: (1) its habeas-stripping provisions provoked a
constitutional dispute on a core liberty concern, [85] ultimately resolved in Boumediene; (2) it attempts a unilateral re-interpretation of
sections of the Geneva Conventions[86]; and (3) it replaces the discredited military
commission system with one that suffers from many of the same defects that
troubled the Supreme Court in Hamdan.[87] At least
until Boumediene was decided, the
cumulative result was to return the prisoners to a realm beyond law.
Of course, the
government has never accepted the argument that Guantánamo is either lawless or
beyond the law. Rather, it has
insisted upon the lawfulness of its governance regime, as it must; even the
most totalitarian of regimes claim to be operating in accordance with the law,
and use the law, its language, forms, actors, and mythologies to legitimize its
actions.[88] By the
government’s account, law is all around: contract law governs the agreement with
Cuba granting the U.S. use of Guantánamo as a naval station; the Uniform Code
of Military Justice applies to wrongdoing committed by military personnel and
civilian contractors on the base; and international humanitarian law authorizes
wartime detention of combatants.
Notably, an
argument can be made from the left that there is law (as opposed to the
normative argument that there should be) at Guantánamo. Traditional human rights law posits
that human rights obligations apply everywhere and all the time.[89] By this
account, Guantánamo does not exist outside the law; rather, the law is
permanent, and immanent, and thus the conditions of Guantánamo are the result
of illegal acts by state authorities.
If one accepts the integrity of human rights law, and its ontological
independence from any state sovereign, then it follows that there can never be
lawlessness, only gross violations of law.
But such
competing claims to the existence of law at Guantánamo reveal the “Is there
law?” question to be both political and jurisprudential. For the administration, the claim to
law reflects a concern, and a contest, over the legitimacy of state power.[90] I return
to this inherent linkage between law and legitimacy in Section II.A, but note
here the suspicion that must attach when the claim to law is made by an
executive that simultaneously insists upon the nonjusticiability of its
claim. Indeed, the
administration’s claims of law’s applicability are selective at best: For example,
it relies upon international humanitarian law (IHL) for the principle that
combatants may be detained for the duration of hostilities, but has sought to
disclaim the applicability of other provisions of IHL, most notably Common
Article 3 of the Geneva Conventions.
For human rights
advocates, the claim to law is also a claim about state power, and its
subordination to a set of norms and principles which originate outside the
state, without the need for state consent, and yet have the force to bind
it. While I am sympathetic to the
human rights position, my experience at Guantánamo, and more importantly that
of the prisoners, makes the assertion of law’s existence seem ever more
fanciful. Indeed, looking from the
lived experience of those on the receiving end of illegality suggests a limit
to the faith one can place in the aspiration of human rights law. At some point, systematic
illegality—particularly when enacted under a claim of law—crosses
into lawlessness. We might
consider, for example, the experience of a now-released British prisoner named
Feroz Ali Abassi. In an
administrative review proceeding called a Combatant Status Review Tribunal, [91] created by the Administration in the aftermath of Rasul, Abassi submitted written
complaints that military police had sex in front of him while he prayed, and he
argued that he should be considered a prisoner of war rather than an enemy
combatant. But as the Associated
Press reported:
[A]n Air Force
colonel, whose identity remains blacked out [on the transcript], would have
none of it. “Mr. Abassi your
conduct is unacceptable and this is your final warning. I do not care about international
law. I do not want to hear the
words international law again. We
are not concerned about international law,” the colonel insisted before having
Abassi removed from the hearing so that the military could consider classified
evidence against him. Abassi was
freed in January 2005.[92]
Or, as a U.S. intelligence official said to prisoner
Hadj Boudella, “You are in a place where there is no law – we are the
law.”[93]
Here, then, we must acknowledge the
inextricability of law and the state, and the special, though not exclusive,
authority the state holds in defining what is law because of its monopoly on
legitimate violence. The challenge
of the human rights movement is to establish law that transcends
sovereignty. It remains to be
seen, however, whether law can so exist, or if, liked a trapped animal, one
limb isn’t always caught in state power.
In this context, the Rasul, Hamdan,
and now the Boumediene decisions represent
not just law, but law’s ambition, and its contradiction: a force that can
transcend state power, even as it is constituted by it.
The
Court’s decision in Boumediene is the
latest, but likely not the last chapter in the Guantánamo legal history. Like Rasul,
it is affirms the jurisdiction of the federal courts to hear the prisoners’
habeas petitions, but it is all the more significant because the decision is
based on constitutional grounds.
Pushed into a corner by the MCA, the Court confronted directly the
question of whether the habeas-stripping provision of Section 7 of the MCA was
in violation of the Suspension Clause, and found that it was.[94] This constitutional vindication of the
prisoners’ right to be heard, and the seeming willingness of the district court
judges to now proceed with the prisoners’ habeas cases expeditiously,[95]
suggests anew the potential for transformative legal practice. And yet, the history of the Guantánamo
litigation suggests that the proper measure of such court victories is not
their doctrinal significance, but their effect in the lived experience of the
prisoners. Six years after some of
the prisoners arrived, the question finally resolved by the Court in Boumediene is not whether they are being
held lawfully, or what substantive rights—Fifth Amendment due process, or
Sixth Amendment confrontation rights, for example—but only that they are
entitled to contest their detention.
Thus, while the Boumediene
decision is undoubtedly historic with regard to the scope of executive
authority, it merely returns the prisoners to the place they were four years
ago, after Rasul.[96]
II. Techniques of Legal
Erasure:
Legal Absurdism and Radical
Indeterminacy
A. Legal Erasure Through Legal Absurdism: The Military Commissions
It has become
a commonplace to describe Guantánamo as Kafkaesque. Indeed the official
narrative of Guantánamo bears an uncanny resemblance to the literary narrative
of The Trial.[97] As one scholar has written: “If there is anything that is assuredly and appropriately ‘Kafkaesque,’ it would be a situation
of indefinite detention, where one is not formally charged, where one is
obstructed in seeking counsel, where various machinations keep an individual
from having his or her ‘day in court,’ and where, all the while, one is being
secretly and separately ‘judged,’ either in a formal sense (by the state) or
more informally by the community of observers who are invited to infer guilt
based on the status or mark of the putative offender.”[98]
Absurdity
abounds at Guantánamo. Before Rasul, iguanas were protected under the
Endangered Species Act but prisoners were protected by no law.[99] Under pressure from the federal courts,
the administration determined several men, whose “enemy combatant” status had
never been substantiated, to be “no longer enemy combatants,” even though, as a
federal judge noted, they had never been “enemy combatants” in the first place.[100] A habeas lawyer was falsely accused of
smuggling contraband—namely, a pair of athletic underwear—in to a
prisoner, ostensibly by wearing them in himself.[101] The list is endless.
The
invocation of Kafka, as well as Sartre and Lewis Carroll, speaks not only to
the absurdist tendencies of Guantánamo, but more broadly, to the absurdist
tendencies of unchecked legal regimes.
In the existential crises of The
Trial or No Exit,[102]
and in the topsy-turvy universe of Alice
in Wonderland,[103]
nonsensical worlds are established through rules, and seeming lawlessness is
established by and through law.
What troubles readers of the existentialist texts, and amuses readers of
the absurd, is the insistence on internal logic even as the rules they create
are logically disjoined from history, lived experience, liberal expectations,
and common sense. Alice’s world is
a wonderland only because it is so at odds with her, and her reader’s,
conventions and expectations. And
yet, the conceit of all three texts is to demonstrate how an elaborate though
opaque set of rules can re-construct reality, in a bid to reconstitute
normalcy. It is Josef K., Garcin,
and Alice who are made to feel foolish, and not their keepers. Thus do these texts launch into
narrative contest with the known and understood worlds of their readers. Similarly, the law of Guantánamo is
embedded in the story of Guantánamo, and that story is made and re-made through
narrative contest.
As lawyers
began to penetrate Guantánamo in the fall of 2004, they learned and exposed
prisoner stories of torture and abuse, of mistake and innocence, and of lawless
detention, thereby disrupting the government’s master narrative of unrelenting
terror. Habeas lawyers’ access to
the prisoners therefore threw Guantánamo into a new realm of narrative contest,
one in which the government participated vigorously, and continues to do so
today, largely through storytelling.
One story
the government has told is of Guantánamo as a humane and effective
interrogation center. This
narrative seeks to counter allegations of torture and abuse by advancing a
commitment to a non-confrontational, collaborative model of interrogation,
while at the same time insisting that Guantánamo cannot be closed, as many have
demanded, because it continues to yield valuable human intelligence in the
fight against terrorism.[104] To tell this story, the government has
let reporters and members of Congress observe an interrogation (something they
have refused to permit the prisoners’ lawyers to do). And yet, as Neil Lewis reported in the New York Times, these
interrogations appear to have been staged:
Journalists who were permitted
to view an interview session from behind a glass wall ... were shown an
interrogator and detainee sharing a milkshake and fries from the base’s
McDonald’s and appearing to chat amiably.
It became apparent to reporters comparing notes in August [2005],
however, that the tableau
of the interrogator and prisoner sharing a McDonald’s meal was presented to at
least three sets of journalists.[105]
What Lewis and other journalists
witnessed was a set piece, one more attempt to construct and conceal reality,
not unlike the high-end interrogation room in which I met Omar in 2005.
Nowhere was
the staging of Guantánamo more evident than in the military commissions. Whereas the vast majority of Guantánamo
prisoners have never been charged with a crime, and never will be, the government
has charged a select few, including Omar, with alleged war crimes, to be tried
by military commission. Trials are
so common a feature in our popular culture that it is difficult not to view
them through a theatrical lens. In
the military commissions, however, theater was not merely a metaphor, but an
ambition. The general suspicions
that attaches to military trials,[106]
combined with the gross procedural and substantive irregularities of these
military commissions, led critics to call the proceedings nothing more than
show trials. Mindful of this
criticism, and seeking to rebut it, the administration sought to perform the
commissions’ legitimacy, and in so doing only further undermined it.
The
commission process was established by presidential order in November 2001,[107]
and the first prisoners were charged and referred before a commission in 2004.[108] From the very beginning, the
commissions were plagued by accusations of structural unfairness, inadequate
protections for defendants, and rules that seemed to change at whim[109];
many of these charges were vindicated by the Supreme Court’s wholesale
invalidation of the commissions in Hamdan. In their original incarnation,[110]
the commission rules permitted testimony obtained through torture,[111]
the liberal use of secret evidence, and exclusion of the defendant from his own
trial.[112] Evaluating the military commission
system in its early incarnation, Professor Mary Cheh posed the baseline
questions, and provided a terse and unambiguous answer: “Are the military commissions rigged? Are they fixed or
arranged in a way to produce a desired result? Are they irregular courts in
which accepted procedures are perverted and defense counsel's hands tied? In a
word, yes.”[113] Mounting domestic[114]
and international[115]
criticism—some of it coming from within the commission prosecutor’s own
office[116]—exerted
enormous pressure on the government to shore up the legitimacy of the
commission process, much of which was done on a purely cosmetic level.
The
government went to great lengths to make the commission look as much like a
real court, even as they were emptied of the substantive rights that ordinarily
inhere in a courtroom.[117] Although there was no judge in these
proceedings, the presiding officer was ordered to wear a robe[118]
(and ours carried a gavel); although this was a commission and not a court, the
commission room, formerly a dental clinic,[119]
was swathed with blue velvet curtains and rich, dark wood furniture so as to
look like a courtroom. The
curtains only went two-thirds of the way up the wall, after which the painted
cinder block of the weathered building were exposed. But two thirds was just far enough for the curtains to fill
the frame of the cameras in the room, which broadcast proceedings on a
closed-circuit system. For those
of us appearing as defense lawyers in the commissions, we knew we were on a
hastily constructed set, where costume and props and scenic design attempted to
consecrate the once-barren space.
In our very first commission session we were handed a document listing
speaking parts for the presiding officer, the lawyers, and our client, and
ordered, with no apparent sense of irony, to follow “the script.”[120]
This crude
staging recalls the insights of Peter Gabel and Paul Harris, who have noted the
deployment of a “tableau of authoritarian symbols” by legal systems in order to
self-legitimize.[121] Describing this phenomenon of
self-legitimation, they write:
[A]ll forms of
serious social conflict are channeled into public settings that are heavily
laden with ritual and authoritarian symbolism. Each discrete conflict is treated as an isolated “case”: the
participants are brought before a judge in a black robe who sits elevated from
the rest, near a flag to which everyone in the room has pledged allegiance each
day as a child; the architecture of the courtroom is awesome in its severity
and in its evocation of historical tradition; the language spoken is highly
technical and intelligible only to the select few who have been “admitted to
the Bar.” This spectacle of
symbols is both frightening and perversely exciting. It signifies to people that those in power deserve to be
there by virtue of their very majesty and vast learning. When disseminated throughout the
culture (through, for example, the schools and the media), these symbols help
to generate a belief not only in the authority of the law, but in authority in
general.[122]
The Gabel
and Harris critique exposes the ritual and symbolism deeply embedded in
long-standing legal systems, and the role that they play in upholding and
perpetuating obedience to political authority. At Guantánamo, however, the commissions were erected on a
nearly blank slate: the last American military commission was convened in 1942.[123] Thus, the commissions at Guantánamo did
not require the excavation of socio-cultural artifacts buried deep within the
legal system. Rather, because we
were witnessing the creation of a legal system nearly from scratch, the
installation and instantiation of authority were on blatant display.
In the
commissions, the trappings of law substituted for law itself. At every turn, the government
maintained that the prisoners at Guantánamo had no rights whatsoever, under any
source of law, even when they were being tried criminally. Moreover, while the administration claimed
they had legal authority to convene the commissions (a position repudiated by
the Supreme Court in Hamdan), there
were few formal rules governing the commission. The only substantive requirement for the commissions was
that they be “full and fair,”[124]
a phrase that the prosecution and the presiding officer repeated ad nauseum,[125]
and one that expanded, or more typically contracted, to meet the particular
substantive challenge being raised.
Despite the
protests of defense lawyers, the commissions operated with virtually no rules
of evidence, no discovery rules, no rules of decision, and no rules regarding
precedent. Thus, not only was
positive law in short supply, so, too, was any sense as to what interpretive practices
would be followed by the commissions, what precedential value a decision in one
commission would have later on in the same trial, in another trial before the
same presiding officer, or in a trial before a different presiding officer.
Our
military co-counsel, Lieutenant Colonel Colby Vokey, attempted to gain some
clarity on the question of what jurisprudence would be relevant to the
decisionmaking of the commission.
In the course of voir dire of the presiding officer, he attempted to
learn what caselaw, if any—domestic or international, criminal or civil,
military or civilian—would be followed, to which the presiding officer
responded, “If you want to know if ... a particular case is applicable or a
point of law, file a motion and I will decide it based on the briefs and the
arguments and the law.”[126] Leaving aside the circularity of this
argument, it contemplates counsel divining the law through a system of
pinging—motions citing various cases like so many bursts of energy
issuing into an ocean of unknowable dimension, with the hope that they might
actually hit something and signal the existence and location of applicable
law.
Unlike an
established system of law, where the parties might seek to distinguish other
cases factually or legally from the one being litigated, the commission
system’s fundamental principles of jurisprudence were unknown. The commissions were thus a common law
system at time zero, boundless in its potential, but entirely bereft of
guidance as to how the law might actually evolve. The resulting was a lack of predictability and a
corresponding manipulability, both of which undermined the system as a whole.
Our faith
in the system had never been very strong.
In the several months of Omar’s commission case, we filed nearly 40
motions, including motions to adopt the rules of discovery and rules of
evidence applicable in courts-martial.
The commission managed never to decide these motions, and many other
substantive ones like it, before the Hamdan
decision came down. One decision
it did issue, however, is worthy of mention. The defense had moved to disqualify the commission
appointing authority (the rough equivalent of a convening authority in
courts-martial) for bias, and in support of that motion had moved for the
production of the appointing authority in order to demonstrate his bias through
examination. The presiding officer
denied our motion to produce the appointing authority, finding that we had
proffered only the areas on which we would question the witness, and not what the
witness would actually say.[127] We subsequently renewed our motion,
noting in passing that the requirement that we state what the witness would say
in order to obtain his production for the purposes of examining him had “an
Alice in Wonderland quality” to it.[128] The next day, the presiding officer rejected
this filing, holding that the Alice in Wonderland reference was “patently
disrespectful of” the commission and the presiding officer, and as such would
be moved to “the inactive section of the filings inventory.”[129] By uttering the words “Alice in Wonderland,”
we unwittingly had made the motion disappear.
This ruling
was among the last official actions taken by the commission before the Supreme
Court shut it down. Tellingly, it
reflected a preoccupation with the dignity of the commission, as a stand-in for
legitimacy, and demonstrated the speed with which the commission could move if
it wanted, even as our substantive motions languished. Indeed, the commission system had
issued a rule ordering that that commissions be treated with dignity.[130] The illegitimacy of the commissions was
established less than a week later, suspending all issues before the
commission, substantive and frivolous alike, though not before we filed a
revised motion including an appendix of the hundreds of Supreme Court decisions
and briefs and federal appellate, district, and state court opinions that
reference Alice in Wonderland.[131] The Alice
in Wonderland appendix was both cheeky and plainly serious, for it was
meant to suggest that an established legal system, secure in its own legitimacy,
would not be so easily offended.
The Supreme
Court’s invalidation of the military commission system in Hamdan led Congress to authorize a new system as part of the MCA,[132]
thus overcoming the Court’s objection that the original commissions lacked congressional
authorization.[133] In 2007, a new military commission
system was unveiled, to renewed criticism, including sharp accusations of
political interference in the system made by its former chief prosecutor, Air
Force Colonel Morris Davis.[134] While the new commission system
resolved some of the problems of its predecessors, it remained deeply flawed,
and criticisms such as Colonel Davis’s fueled domestic and international
concerns about its legitimacy. Nonetheless,
the commission system did manage bring a case to completion in August
2008—that of Bin Laden’s driver, Salim Hamdan. That case, which featured closed proceedings and secret
witnesses, ended in a conviction of Hamdan for providing material support for
terrorism.[135] And yet, rather than enhancing the
commissions’ legitimacy, the conviction and its accompanying sentence seemed to
diminish them further, as news accounts focused on two facts: first, that the
first “war on terror” war crime tribunal resulted in a five and a half year
sentence, for which Hamdan was given credit for all but five months; and
second, that the government maintains that even after completing the remaining
months of his sentence, Hamdan may still be detained indefinitely as “enemy
combatant.”[136]
B. Legal Erasure Through Radical Indeterminacy
The stated
rationale for the use of military commissions at Guantánamo rather than
established courts was that the “war on terrorism” made the application of
ordinary standards of justice impracticable.[137] This exception to the standard rules of
criminal justice with regard to commissions tracks a broader argument of
exceptionalism with regard to the “war on terrorism,” according to which the
different, and exigent, nature of terrorism’s threat necessitates deviation
from ordinary principles of law.
This “state of exception,” as Carl Schmitt termed the phenomenon in
1930s Germany,[138]
presupposes emergency, and by its own terms promises to be temporary. Schmitt famously described the
sovereign as he who has the power to decide the state of exception.[139] And yet, as Giorgio Agamben argues, the
history of the state of exception is one of unrelenting expansion,
self-justification, and self-perpetuation until the state of exception becomes
permanent.[140] As others have noted, the inauguration
of a seemingly permanent “war on terrorism” transforms the exception into the
prevailing paradigm of governance.[141]
Agamben
demonstrates that the theoretical difficulty with the state of exception is
that it cannot exist strictly within or strictly outside of law: either the
positive law sanctions the exception, in which case law is donut-shaped, or the
exception is extra-legal, in which case the exercise of expanded state power in
times of emergency demonstrates the limits of law’s dominion.[142] Law and lawlessness are inextricably
linked, not unlike the normalcy of small-town Guantánamo and the deviance of
the camps.
How, then,
are we to understand the relationship between law and lawlessness? How do we know when a state of
exception is sanctioned by law, and when it is not? As I have suggested previously, law instantiates norms. It is normalizing. But the domain of law is, by necessity,
constituted in reference to the lawless.
At Guantánamo, we see that law is all around, but it only reaches so
far. To place someone outside the
law, while simultaneously maintaining that that is the law, is to reveal law’s
limit, the lawlessness of law.[143] The question of where those limits are
drawn, however, is political, cultural, and historical, and not fundamentally
juridical. Mark Tushnet suggests
that because the terms regulating states of exception are typically subject to
interpretation (i.e., what constitutes an emergency?), the interpretation of
those terms is bound to be political.[144] In this sense, “states of exception are
ones in which politics replaces law.”[145] But as Tushnet also notes, if one
accepts the central insight of the Legal Realism, that politics always
displaces law, then there are no states of exception.[146] Rather, emergencies “merely surface the
usually hidden role of politics in determining the content of law.”[147]
Gerald
Neuman similarly has criticized “anomalous zones” such as Guantánamo, which he
describes as “geographical exceptions to policies otherwise regarded as
fundamental”.[148] Consistent with Tushnet’s analysis,
Neuman warns that such zones “may become, quite literally, sites of
contestation of the polity’s fundamental values,”[149]
thus revealing the political dimension to such suspensions of law.
If Tushnet
is correct, as I believe he is, then the law and lawlessness of Guantánamo are
properly understood as the politics of the moment. The military commissions provide ample evidence that this is
the case.
The
military commissions seemingly are a mathematical proof of the central theorems
of Critical Legal Studies: law transparently manufactured by, and covering for,
politics; legal process intended to meet political goals; a radically
indeterminate system based upon infinitely manipulable classifications; and
seemingly neutral principles easily deployed by politicians in service of
prevailing power structures.[150]
The central
paradox of the commissions was exactly that addressed by Agamben: the
propagation of lawlessness through the exercise of law. As I discussed previously, the
commission system lacked rules for the most fundamental aspects of a trial, and
what rules it had changed at whim.
Because the system disavowed lineage to any extant common law system, it
was left no other option than to make up the law as it went along. This “law” consisted of a steady flow
of directives from the Secretary of Defense (“Military Commission Orders”), the
Department of Defense General Counsel (“Military Commission Instructions,”),
the Appointing Authority (“Appointing Authority Regulations” and “Appointing Authority
Orders”), and the presiding officers (“Presiding Officer Memoranda”). We were instructed to refer to these
various rules as “Commission Law,” an invention that by its terminology, and
capitalization, sought to endow the commissions with the majesty, and
legitimacy, of law.[151] This grasp for the mantle of law
complemented the hastily decorated commission room and judicially costumed
presiding officers.
The intense
struggle over what constituted “law” in the commissions, and the government’s
attempt to label its ad hoc system as Law, reflect the cultural, mythological,
and political qualities that make law forever contested and contingent. Robert Cover cogently described this
phenomenon, noting in particular the way in which law necessarily covers, and
covers up:
The word “law,”
itself, is always a primary object of contention. People argue and fight over “what is law” because the term
is a valuable resource in the enterprises that lead people to think and talk
about law in the first place .... The struggle over what is “law” is then a
struggle over which social patterns can plausibly be coated with a veneer which
changes the very nature of that which it covers up. There is not automatic legitimation of an institution by
calling it or what it produces “law,” but the label is a move, the staking out
of a position in the complex social game of legitimation. The jurisprudential inquiry into the
question “what is law” is an engagement at one remove in the struggle over what
is legitimate.[152]
The
political goal of producing convictions was also on blatant display in the
commissions. When the commissions
were first established, military defense lawyers were assigned for the sole
purpose of convincing charged prisoners to plead guilty.[153] Emails from within the prosecutor’s
office confirmed suspicions that the process would not permit fair trials. As one prosecutor wrote, “[W]hen I
volunteered to assist with this process and was assigned to this office, I
expected there would be a minimal effort to establish a fair process and
diligently prepare cases against significant accused. Instead, I find a half-hearted and disorganized effort by a
skeleton group of relatively inexperienced attorneys to prosecute fairly low-level
accused in a process that appears to be rigged.”[154] The chief prosecutor (who subsequently
retired) was accused of stating repeatedly to his office “that the military
panel will be handpicked and will not acquit these detainees”.[155] His replacement would resign in
protest, claiming that Pentagon officials told him that the commission system
could not tolerate acquittals.[156]
As noted
previously, the absence of an applicable jurisprudence left the commission
system of adjudication unbounded by principle, and enabled the easy deployment
of seemingly neutral terms such as “rule of law” and “full and fair” to
political ends. Moreover, the
relevant legal categories on which detention, interrogation, and criminal
liability were to be based were themselves radically indeterminate. As a signal example, the definition of
“enemy combatant” –the very basis for detention and interrogation at
Guantánamo—has shifted dramatically over time, depending upon the needs
of the government in the particular political moment. Rather than a static legal category, it has proven fluid and
fundamentally political.
Similarly, the seemingly fixed meaning of “war crime,” well-established
in international law, has been re-determined by the administration. Each of these examples is discussed in
greater detail below.
1. The Indeterminacy of “Enemy Combatant”
The “enemy
combatant” term emerged in popular parlance before the administration attempted
to endow it with legal meaning.
Media accounts used the term to describe suspected terrorists, and
attributed it to Ex Parte Quirin.[157] As Peter Jan Honigsberg has
demonstrated, the administration has proffered at least six different
definitions of the term, often times conflating distinct categories established
in international humanitarian law.[158] Rather than review each etymological turn,
I seek here to highlight three competing definitions, each of which emerged to
meet the political demands of the particular moment.
International
humanitarian law distinguishes between lawful and unlawful belligerents, where
lawfulness entitles the belligerent to POW status upon capture, and to immunity
from prosecution under domestic law for taking up arms.[159] Both lawful and unlawful combatants may
be detained for the duration of hostilities.[160] The administration’s use of “enemy
combatant” at times conflates both categories,[161]
and at other times seems to create a third.
The
presidential order purporting to authorize the detention of individuals at
Guantánamo provides one important definition of “enemy combatant”.[162] It grants detention authority for any
non- U.S. citizen whom the president determines there is reason to believe “(i)
is or was a member of the organization known as Al Qaida, (ii) has engaged in,
aided or abetted or conspired to commit, acts of international terrorism, or acts in
preparation therefor, that have caused, threaten to cause, or have as their aim
to cause, injury to or adverse effects on the United States, its citizens,
national security, foreign policy, or economy; or (iii) has knowingly harbored
one or more individuals described in subparagraphs (i) or (ii)”. Arguably, it is this class of people to
whom the “enemy combatant” term was applied in the popular media. Thus, this iteration of the “enemy
combatant” category is a creation of the executive, and requires nothing more than
a unilateral, presidential determination that there was “reason to believe” an
individual was connected, in any of a myriad of ways, to terrorist activity
adverse to the United States.
As the government’s enemy combatant regime was challenged
in court, the definitions began to shift.
In Hamdi v. Rumsfeld,[163]
for example, the definition narrowed considerably. Yaser Hamdi was a U.S. citizen captured in Afghanistan,
detained at Guantánamo, and then transferred to a military brig in South
Carolina following discovery of his citizenship. When the Supreme Court considered the legality of his
detention as an “enemy combatant,”
Justice O’Connor, writing for the Court, noted that “[t]here is some debate as
to the proper scope of this term, and the Government has never provided any
court with the full criteria that it uses in classifying individuals as such,”[164]
thus conceding the ambiguity of the government’s definition. The Court went on to consider Hamdi’s
case in light of the specific definition proffered by the government, namely,
an individual who “‘was part
of or supporting forces hostile to the United States or coalition partners’ in
Afghanistan and who ‘engaged in an armed conflict against the United States.’”[165] Suddenly, the requirements of the
Presidential Military Order of either membership in Al Qaeda or participation
in terrorism have dropped away, and conveniently so: the U.S. alleged that
Hamdi had affiliated with the Taliban, and not Al Qaeda, and alleged that he
was with a Taliban unit that was engaged in battle against the Northern Alliance, not acts of
international terrorism.[166] Accepting the government’s new
definition, the Court held that although Hamdi’s detention was authorized by
Congress, due process required “a meaningful opportunity to contest the factual
basis for that detention before a neutral decisionmaker.”[167]
In
Rasul,[168]
heard the same Term as Hamdi, the
government proffered the same “enemy combatant” definition as in Hamdi, only to change it again once the
two cases were decided. Whereas Hamdi concerned the legality of the
detention of a U.S. citizen as an “enemy combatant,” Rasul involved noncitizen prisoners at Guantánamo Bay who sought to
challenge the legality of their detention in U.S. courts. The Rasul
decision did not address the substantive definition of “enemy combatant,” and
instead limited its inquiry to whether the federal habeas statute granted the
courts jurisdiction over the Guantánamo prisoners’ cases, and concluded that it
did.[169] The import of these two cases was immediately
apparent: even when Congress had granted detention authority over “enemy
combatants,” that detention could be challenged in federal court, and at least
where U.S. citizens were involved, the fundamental notice and hearing
requirements of due process attached.
Thus, the Supreme Court seemed to set the stage for meaningful federal
court inquiry into the government’s “enemy combatant” definition.
In
an effort to avoid such scrutiny, the government hastily constructed a process
it termed the Combatant Status Review Tribunal (“CSRT”),[170]
which provided rudimentary and incomplete notice to each prisoner of the basis
of his detention, as well as a flawed and perfunctory hearing process in which
to contest that basis.[171] But in inventing a process, the government
also invented a new substantive definition of “enemy combatant,” this time
defining it as “an individual who was part of or supporting Taliban or al Qaeda
forces, or associated forces that are engaged in hostilities against the United
States or its coalition partners.
This includes any person who has committed a belligerent act or has
directly supported hostilities in aid of enemy armed forces.”[172] Once more, the definition shifted, this
time expanding massively beyond the battlefield of Afghanistan, and expanding
well beyond actual engagement in armed conflict against the United States.[173]
It
is difficult to see the CSRT definition as other than a bill of attainder-style
categorization, as it was invented after the individuals whose detention the
government sought to justify were already in custody. Unlike Yaser Hamdi, who looked much like a traditional
combatant found on the battlefield in Afghanistan, the CSRT definition had to
contend with, and rationalize, the detentions of individuals at Guantánamo who
had been picked up in places as remote from the battlefield as Gambia, Zambia,
and Bosnia.[174] Similarly, whereas the Hamdi definition of “enemy combatant”
served the government’s needs when the case at hand was one of an individual
caught with a Taliban unit while engaged in armed conflict with a U.S.
coalition partner (the Northern Alliance), the requirement of engagement in
armed conflict was clearly inadequate to uphold the detentions of the alleged
chauffer for Osama Bin Laden,[175]
or individuals alleged to be mere acquaintances of suspected Al Qaeda
operatives.[176] The government’s unfolding “war on
terrorism” required an “enemy combatant” definition that was global in reach
and extended beyond the ordinary indicia of combatancy.
The
government readily conceded the breadth of its new “enemy combatant”
definition, agreeing with a federal habeas judge that it would encompass a “‘little old lady in Switzerland who
writes checks to what she thinks is a charity that helps orphans in Afghanistan
but [what] really is a front to finance al-Qaeda activities,’ ... a person who
teaches English to the son of an al Qaeda member, ... and a journalist who knows the location of Osama Bin Laden
but refuses to disclose it to protect her source.”[177] Equally remarkable, the government has
argued that each prisoner had already been determined to meet the CSRT
definition of an “enemy combatant” through “multiple levels of review by
officers of the Department of Defense,”[178]
despite the fact that the applicable definition was invented only after these
reviews were to have been performed,[179]
and indeed, conflicted with competing definitions being proffered by the
government.
Interestingly,
even the rudimentary CSRT proceedings concluded that some of the Guantánamo
prisoners were not, in fact, “enemy combatants,” further undermining the claim
that they previously had been subject to multiple levels of review. But rather than state explicitly, and
honestly, that these individuals were not “enemy combatants,” the government
insisted on referring to them as “no longer enemy combatants.”[180] The “no longer enemy combatant”
designation suggests that these individuals once were, even though such a
factual determination seems never to have been made. This kind of wordplay, clever in an Alice in Wonderland sense (“How could I no longer be something I
never was?”), was described by the prisoners’ counsel as Orwellian,[181]
but the judge chose a more familiar characterization: he called it
“Kafkaesque.”[182]
2. The Indeterminacy of
“War Crime”
Just as the executive branch has defined and re-defined
“enemy combatant,” so, too has it
attempted to re-determine the meaning of the term “war crime,” the legal
predicate for criminal liability before a military commission. The Uniform Code of Military Justice
authorizes the use of military commissions to try violations of the law of war,
as well as other authorized offenses.[183] Prior to the enactment of the Military
Commissions Act, neither the charges for crimes to be heard before commissions
nor their elements were defined by Congress, but instead were provided by the
Executive.[184] Moreover, none of the charges lodged
against Omar and the other prisoners have ever been recognized as war
crimes. For example, all ten
prisoners initially put before commissions were charged with conspiracy, a
charge that a four-member plurality of the Supreme Court in Hamdan concluded did not constitute a
war crime.[185] In addition, the principal charge
against Omar—“murder by an unprivileged belligerent”[186]—has
never been recognized as a war crime, either.[187]
Enactment of the Military Commissions Act
cured the defect of the commissions lacking congressional authorization, but
merely implicated Congress in the re-definition of “war crime.” The MCA includes a catalogue of charges
deemed triable by military commission, along with their elements, including
conspiracy.[188] In this way, it resembles an ordinary
criminal statute. But the Act
includes a curious pronouncement: “The provisions of this subchapter codify
offenses that have traditionally been triable by military commissions. This
chapter does not establish new crimes that did not exist before its enactment,
but rather codifies those crimes for trial by military commission.”[189] This statement is proven demonstrably
false by Congress’s stubborn inclusion of conspiracy as an offense
“traditionally triable by military commissions,” despite the contrary
historical record.[190]
Once more, legal categories prove
malleable rather than established, fluid rather than fixed, and threaten to
become the playthings of lawyers and judges and politicians rather than the
expressions of liberal principle.
The congressional statement of purpose attempts to inoculate against an ex post facto claim, but can only avoid
this charge of after-the-fact criminalization by altering our understanding of
the before-the-fact historical record.[191]
With specific regard to Omar’s case,
Congress engaged in the kind of linguistic legerdemain that further undermines
faith in the integrity of the Guantánamo legal regime. At the time of the MCA’s enactment,
Omar was the only prisoner to be charged with “murder by an unprivileged
belligerent.”[192] Like conspiracy, this charge was
unknown to the law of war, and in this sense was an invention of the
Executive. Indeed, the charge
turned the law of war on its head by making the status of the offender, rather
than that of the victim, determinative of the existence of a war crime. Whereas an unprivileged combatant could
be charged for murder under domestic law, he could only be charged with a war
crime if the victim was a protected person, such as medical or religious
personnel, civilians not taking active part in hostilities, or military
personnel placed hors de combat (for
example, by detention or injury).[193]
The MCA appears to acknowledge the legal infirmity of the “murder by an
unprivileged charge,” as evident from its omission from the statute’s catalogue
of charges. Instead, the MCA
includes the charge of “murder in violation of the law of war.” An earlier section of the statute includes
the well-recognized war crime offense of “murder of a protected person,”[194]
but “murder in violation of the law of war” appears to contemplate some other
class of murder that also is a war crime.
No such offense exists. The
very purpose of this section of the statute is to codify law of war offenses,
but by incorporating “violation of the law of war” into the definition of the
offense, the MCA renders the definition circular. It is this opaque offense with which Omar was charged
following enactment of the MCA.[195]
For Omar,
and I suspect for many of the other prisoners, it was difficult to accept that
he would ever get a fair trial before the commission. His legal consciousness[196]
was of law’s manipulability and its cover for political power. His experience, both before and during
(and after) the commission demonstrated that at Guantánamo law was everywhere[197]
and nowhere at the same time. As
for his lawyers, we were not blind to the overwhelming politics of the
process. And yet, in this
rights-free environment, we elected to pursue a primarily rights-based
strategy, not merely in federal habeas proceedings, but in the commission at
Guantánamo as well. The question
is, why?
III. Arguing Rights in a
Rights-Free Zone:
Tactics, Strategies, and Theories
As I have
discussed thus far, we believed the commission to be a purely political
apparatus, devoid of legal legitimacy, and yet, rather than boycott the
proceedings, we participated in them.
What is more, despite our keen awareness that the system was built upon
a rights-free edifice, we insisted on making rights-based arguments in the
commission, as opposed to accepting the rights-free system presented to us. Thus, we argued that the Constitution,
and in particular, Fifth Amendment due process protections, extended to Omar,
as did substantive and procedural protections of the Geneva Conventions[198];
we argued that Omar had rights as a child, under international treaty,[199]
as well as customary international law; and we argued that human rights law
applied, and could not be displaced by international humanitarian law.[200]
This
rights-based strategy might seem futile given the malleability of law and the
contingency of its structures and definitions at Guantánamo—on full
display in the ever-shifting nature of such seemingly bedrock questions as who
is an “enemy combatant” and what is a “war crime”—for so long as the
political context in which rights reside can be redefined, so, too, can the
rights themselves.[201] Moreover, the danger of such a strategy
is not merely futility, but complicity in the commission’s project of
self-legitimation, a concern that haunted us throughout the process. Indeed, one of the most sobering events
for me in the commissions came in the first session, in which I had made a
lengthy legal argument. During a
break, a presiding officer from another case thanked me for the quality of my
presentation and said that I had elevated the process. Although I did not create it, I had
helped to hold up the commission’s curtain of legitimacy.
The indeterminacy
of rights at Guantánamo did not only render them unstable, but suggested that
they were politically determined as well. Like the velvet drapes in the
military commission room, it seemed clear that law, its rhetoric, structures,
and trappings, were serving as a cover for the operation of political
power. Still, we doggedly pursued
a rights-based strategy on Omar’s behalf.
The
question of why one might engage in rights-based litigation in as
rights-starved an environment as Guantánamo involves tactical, strategic, and
theoretical considerations.[202]
A. Rights Tactics and Rights Strategies
The
lawyer’s instinct, if not the human one, is to appeal to a higher authority
when confronted with profound, seemingly irremediable injustice in the primary
forum of contest. In the military
commissions, that higher authority was a federal habeas court which, unlike the
commission, stood independent of the Executive, and enjoyed a legitimacy to
which the commission could only aspire.
As a tactical matter, therefore, we sought in the commission proceedings
to dramatize the irregularity of the commission, in contrast to the proceedings
a criminal defendant could expect in a regular court—either a military
court martial or federal district court.
Rights were an effective discourse strategy for this project, for they
provided instantly recognizable handles for the comparison: the right to see
the evidence against you, the right to confront witnesses, the right to competent counsel were all
so familiar within the American courtroom that their invocation in the
commission—not just in principle but in the language of
rights—would help to cast the commission as fatally deficient in the eyes
of the habeas court when they reviewed the proceedings. This recalls Rick Abel’s insight
regarding the apartheid regime in South Africa: “Because the regime used legal
institutions to construct and administer apartheid, it was vulnerable to legal
contestation.”[203]
Also
helpful is Abel’s observation that even though a reflection of power, law
nonetheless can be a source of countervailing power as well, because state
power is divided among the branches and therefore potentially heterogeneous.[204] Such heterogeneity creates
opportunities for even non-state actors to wield power, strategically and
interstitially, working the gaps and crevices within a complex state
apparatus. Notably, recourse to
the habeas court proved to be the most successful strategy in challenging the
legitimacy of the military commissions; the Hamdan
case, which invalidated the original military commission system at Guantánamo,
was brought via a collateral habeas action.
As a
corollary to Abel’s theorem, our invocation of rights was designed not only to
appeal to the judiciary, but to Congress, civil society actors, and the
press. Rights may be an
impoverished discourse, susceptible of manipulation and, even recognized,
unable to execute themselves without political consent, but they are
nonetheless a familiar and shared discourse, whose resonance carries across branches
of government and across different segments of society. When we engaged in rights talk within
the military commission, we knew that we were speaking to multiple audiences
simultaneously—“playing to the gallery,” as it is often pejoratively
described—and we knew that the language of rights, as a metric of both
correctness and fairness, was accessible to all.
As I have
discussed previously, the structure of the commissions and their early conduct
convinced us that our assertions of rights would almost always fail. But claiming the language of rights
forced the government to disclaim it.
Each time we argued that the Geneva Conventions compelled some
protection for Omar, the government was forced to argue the inapplicability of
the Geneva Conventions. So it was
when we argued constitutional due process and international human rights
claims. Our hope was to dramatize,
through the cumulative governmental disclaiming of rights, what Omar understood
intuitively: that Guantánamo was a rights-free zone.
The fact of
divided government and diffuse power[205]
does not, of course, compel the exercise of countervailing power. Just as our rights-based arguments were
rejected in the commissions, fallen victims to the government’s unswerving
assertion that the prisoners lacked rights of any kind, so too could the
courts, Congress, and the public reach the same conclusion. But the existence of multiple sources
of power also permits different relationships between law and power. This is to say that the value of rights
may vary across space and time. As
a creation of the Executive housed within the cultural and command structures
of the military, the commissions were institutionally situated far differently
than the Article III habeas courts, and subject to different political
pressures than Congress. The
appeal of rights, their narrative and jurisprudential meaning, can be expected
to vary with the narrative frame of the audience. Thus, the repeated failure of rights-based arguments in the commissions
was not necessarily itself a failure, if competing arbiters of rights, in both
the popular and legal imaginations, were to come to different conclusions.
In many
ways, our rights-based strategy was focused less on U.S. institutions and more
on Canada. This reflects a geopolitical
view that Omar’s continued detention, and his trial by military commission, are
partially the function of Canadian acquiescence to American power. To date, Canada has not publicly
criticized either Guantánamo or the trial by military commission of Omar. In contrast, other countries, most
notably Great Britain, have rejected both the detention and trial by military
commission of their citizens, stating publicly the unacceptability of these
practices, and expending political capital in order to end them.[206] As a result of these efforts, all
Britons have been released from Guantánamo,[207]
suggesting that international political arrangements circumscribe Omar’s legal
predicament at Guantánamo. The
political domain, then, includes not only the U.S., and not only U.S.-Canada
relations, but the domestic politics of Canada.
The case of
former Guantánamo prisoner David Hicks is instructive in this regard. Hicks, an Australian citizen, was one
of the first Guantánamo prisoners to be charged before a military
commission. Through the
extraordinary work of his legal counsel and effective advocacy in Australia by
his family, Hicks became a cause célèbre
in Australia, and a symbol of American injustice toward an Australian citizen.[208] The narrative that emerged was that as
an Australian, Hicks was entitled to rights which the military commissions
failed to afford. Hicks ultimately
plead guilty to a single charge and was transferred back to Australia,[209]
under an agreement that was widely understood to be a political compromise
between the Australian and American governments rather than the product of
independent legal process.[210]
Thus, even
if rights-based arguments fall flat in the U.S., Omar’s circumstances might be
improved if rights-based arguments were to alter political discourse in
Canada. This strategy could be
viewed as reducing rights to politics, and deploying rights as mere political
devices. But once more we see how
the value of rights can vary. We
know that rights discourse, in the current historical moment, has more purchase
in Canada than in the United States. A rights-based strategy therefore feeds
into what is essentially ongoing interlocutory review of Omar’s case by the
Canadian government (admittedly, governed by its own political process, but a different
politics), which is in turned informed by broader Canadian public opinion.
And so our
rights-based strategy in the military commissions attempted to negotiate the
uneasy relationship between law and politics, to view rights as less than
self-defining but more than “nonsense on stilts.”[211] The strategy sought to subject the
“law” of the commissions to the scrutiny of a range of political actors. In this sense, our strategy did not
depend on victory in the commission itself. Indeed, the goal of demonstrating the legal emptiness of the
commissions was better served by our arguments—for due process, for rules
of evidence, for prohibitions on coerced testimony—failing in them. We used the commission, and its
rejection of our rights-based strategy, for its political and educational
value, echoing Jules Lobel’s call for deliberate use of courts as forums for
protest.[212]
In so doing, we “drag[ged] the courtroom into politics.”[213]
Clearly,
not all of our tactics worked, and certainly they did not produce our ultimate
goal of returning Omar to Canada.
Moreover, even these tactics came at a cost of partially legitimizing
the commission as a site of legal contest.[214] Nonetheless, I believe the strategic
potential of rights-based argument was sufficient to make our approach
defensible. I must admit, however,
that it was not all clear-eyed strategy that led me to the rights-based
approach, for even before I had thought through the strategic potential, I was
inclined toward arguing rights.
This rights
tropism is the logical and predictable consequence of our professional training
as lawyers. Indeed, it is an
occupational hazard. I do not mean
to disclaim rights wholesale, but at the same time, I am mindful, and wary, of
rights as the first recourse for helping our clients achieve their goals.[215] Rights become the faith story for many
of us, holding out hope for a gradualist, liberal perfection of the injustice
in the world.
That a
language of rights may gain us strategic advantage is helpful, but does not
itself tell us why this is the case.
Are rights merely a vocabulary for considering and structuring power
contests as between individuals and as between individuals and the state, or do
they operate at some other level?
In one of
our first hearings in the military commissions, I filed a motion asking the
commission to find that the Chief Prosecutor had committed prosecutorial
misconduct. On the eve of the
commencement of Omar’s commission proceedings, the Department of Defense held a
press conference at Guantánamo, at which both the prosecution and the defense
were invited to speak. I spoke
first, and decried the lack of rules of the commission, the admissibility of
evidence obtained through torture as well as cruel, inhuman and degrading
treatment, [216] and the
fact that the government had chosen to prosecute a child for alleged war
crimes. I repeated allegations
that Omar had been tortured, and called the commission a “sham.”[217]
The Chief
Prosecutor spoke after me, and as I sat at the back of the auditorium
listening, he referred to Omar as “a murderer” and “a terrorist,” expressed his
personal belief that Omar was guilty of the charges against him, and expressed
his belief that Omar would have preferred to spend the recently passed Muslim
holiday of Eid with Osama Bin Laden than at Guantánamo.[218] Not surprisingly, his comments were
broadcast widely by the international press gathered to cover the military
commissions.[219]
The
following day, I argued that the Chief Prosecutor had violated his ethical
obligations as a prosecutor, thereby committing prosecutorial misconduct. In particular, I argued that his
comments contravened the rules governing extrajudicial pretrial statements.[220] In its opposition, the prosecutor
argued that I had opened the door to the offending statements by claiming that
Omar had been tortured and that the commission was a sham.[221] In oral argument, the commission’s
presiding officer expressed his distaste for the “torture” and “sham” comments,
and expressed an inclination to hold the prosecution and defense to the same
standard with respect to extrajudicial statements. After a lengthy argument in which I parsed the relevant
ethical rules and their comments and reviewed the leading cases, I arrived at a
moment of exasperation. My
doctrinal analysis had failed to persuade the presiding officer that the rules
themselves apply a higher standard to prosecutors because of the power
disparity inherent in prosecution.
He likewise appeared to reject my argument that just as the power to
prosecute strengthens the hand of the prosecutor, so does the weight of an
indictment often compel the defense to speak publicly, and aggressively, on
behalf of his client. I had
exhausted the caselaw—which, I believe, stood clearly on our
side—to no avail.
The
argument had shifted, from the prosecution defending its clearly prejudicial
comments about Omar, to me defending the right to assert publicly Omar’s
credible claims of torture, and by implication, his right not to be tortured. And it was in this moment of
exasperation and exhaustion that I came to a deeper understanding of rights and
the work that they do. Abandoning
doctrine, I argued the absolute necessity of my being able to speak publicly
and without recrimination of Omar’s torture, for the simple reason that he was
not able to do so himself. I
rehearsed the total control that the government had over Omar, noting, “the
state, the government, has had sole custody of my client for three and-a-half
years, has had absolute control over his physical body, has had absolute
control over to whom he’s able to speak, has had absolute control over whether
he has representation [sic] to a lawyer for the first two years he was here,
has had absolute control over his knowledge of the outside world.”[222] I went on for some time longer, not
quite sure how or where to land this argument. Finally, I blurted, “[H]e hasn’t had available to him the
opportunity to speak, the opportunity to say anything. He could not even give his name, raise
his hand and say, ‘I am here.’”[223] Though the transcript does not reflect
it, I remember pausing here, feeling dizzy, and wondering, as the presiding
officer later would,[224]
what this had to do with anything.
We lost the motion.
Only later
did I come to understand that by claiming rights, we were demanding
recognition—raising one’s hand, not waiting to be called on before
answering, “I am here.” The
government had sought to remove Omar and the other prisoners not only from the
ambit of law, but from the world.
They chose Guantánamo because it was remote, then cloaked it in
darkness—refusing to disclose the names or identities of those there,[225]
refusing access to the outside world.
Legal erasure enabled physical erasure. In this context, rights were not just notional, they were
existential.
Here, we
might consider the existential assertion of rights as a form of bearing
witness.[226] The statement, “I am here,” is an
insistence upon Omar’s legibility in the world,[227]
made not by him, but by a lawyer who, by virtue of citizenship, professional
identity, and the speaking platform afforded by the state, can testify to the
world as he sees it, the reality of Omar’s human existence, even in the face of
a master narrative of his invisibility.
The assertion of rights helped gain Omar recognition not merely as a
jurisdictional subject, but as his own self—“I”—a human being.
Martha
Minow similarly has noted that “[t]he language of rights voices an individual’s
desire to be recognized in tones that demand recognition.”[228] For Minow, the claim to rights is a bid
to be heard, a hailing device that “initiates a form of communal dialogue.”[229] Moreover, by turning the question from
one of speaker to one of audience, she identifies rights claims as an
inherently communitarian project.
Although we often think of rights in individualistic terms, Minow argues
persuasively that rights claims always must be made to someone—a
community—and that by making the claim, the claimant implicates herself
in the community.[230] The result is not necessarily
substantive equality, but instead what Minow terms “an equality of attention.”[231] She writes:
The rights
tradition in this country sustains the call that makes those in power at least
listen. Rights—as words and
as forms—structure attention even for the claimant who is much less
powerful than the authorities, and for individuals and groups treated
throughout the community as less than equal. The interpretive approach construes a claim of right, made before
a judge, as a plea for recognition of membership in a community shared by
applicant and judge, much as reader and author share the same text.[232]
Rights, then, are intertextual, and
while litigant and adjudicator may not hold equal interpretive power, they are
bound by a shared interpretive project.[233]
Minow’s
insight reminds us that when Omar attempts to proclaim (through his lawyers or
otherwise), “I am here,” the ambition is to proclaim it to somebody, and in so
doing, to insist upon his place in the community. Minow’s claim is not that rights assertion creates
community, but that it reconfirms it.[234] Here, then, is a limiting principle to
rights claims: they cannot create community where community does not already
exist. Put another way, the
ability of the rights claimant to gain even the “equality of attention” of
which Minow writes requires a baseline of consent of the community that the
claimant belongs to it. The return
to the realm of belonging requires the community’s consent to admission.
Here, then,
is the limiting principle of rights claims at Guantánamo: the community did not
admit of the prisoners’ membership.
To the contrary, it sought to cast the prisoners both physically and
metaphysically as far away as possible.
Minow’s
conception of rights and community is consistent with Hannah Arendt’s notion of
citizenship. Linda Bosniak has
incisively mapped the multiple dimensions that citizenship can occupy,[235]
but for Arendt, political citizenship—membership in the polity—was
fundamental. She defined
citizenship as “the right to have rights,”[236]
by which she meant that one could not gain the benefit of first-order rights,
such as a right against deprivation of life or liberty, if one was not, a
priori, deemed a member of the political community. Arendt wrote with regard to statelessness. The extraordinary violence done to Jews
during World War II, she argued, was possible only through political
dispossession. Once Jews were
removed from any national polity, they lost that a priori right to have and claim rights. The consent to Jewish membership in the polity having been
revoked, so, too, was the Jews’ ability to claim rights that flow from
membership in a polity. For
Arendt, and for Minow, rights presuppose politics, and not the other way around. It is this critical insight that proves
fatal to Omar and the other prisoners at Guantánamo.
We see at
Guantánamo the inverse of Arendt’s formulation of citizenship: no right to have
rights. The legal debate at
Guantánamo has almost never been about the content of the prisoners’ rights,
their contours or their meaning.[237] Rather, time and again, the fundamental
question has been whether the prisoners have the right to have rights, or in
Minow’s formulation, whether they have the right to “the basic equality of
consideration,” or more simply, the right not only to speak (“I am here!”), but
to be heard. This demand to be
heard is exactly what the Guantánamo habeas litigation has been about since its
inception in 2002, and it is what the government has resisted and rejected ever
since.
Habeas
corpus, whose history has been explored exhaustively by others,[238]
translates as “show me the body,” and captures the communitarian, corporeal,
and testimonial dimensions of not just rights claims, but citizenship. For a judge to order the government to
produce a defendant for the purposes of considering the legality of his
detention is to recognize the defendant’s a priori membership in the
community. To require that the
defendant himself—his corpus—be produced, and not just reasons for his
detention proffered, is to acknowledge the physicality and inescapably human
experience of an otherwise abstract liberty interest. And to permit the defendant to not only attend his own
hearing, but to speak on his own behalf, is to credit his standing as an actor
and agent. Taken together, the
communitarian, corporeal, and testimonial bespeak a shared concern: human
dignity.
It is this
human dignity, the human as distinguished from the merely biological, with
which Arendt was fundamentally concerned.
For Arendt, rights are indispensable to humanity, a protective membrane
poised between the state and the individual. What she saw, and Giorgio Agamben has recently revived,[239]
is the idea that a confrontation between the state and the individual unmediated
by rights reduces the individual to bare life, or naked life,[240]
which is life without humanity. It
is this unmediated, unmitigated confrontation that both requires and enables
the rendering of the human inhuman, animal, and savage.[241] It is this rights-free confrontation
that permits torture—the hand of the state encumbered by no law other
than the laws of physics. And it
is this unmediated confrontation that permits the transmogrification of a child
into a terrorist. For Arendt, to
be a citizen is to be human, and to be anything else is merely, and barely,
life.
The
conception of rights as a bare protection interposed between the individual and
state violence is intuitively familiar to the anti-death penalty advocate,[242]
and to criminal defense lawyers generally. But the American legal embodiment of citizenship as rights
is Dred Scott.[243] While Scott was suing for his freedom
from slavery, the case turned upon his citizenship. The Supreme Court found that Scott was not a “citizen of a
State,” and therefore, under the jurisdictional limits of Article III of the
Constitution, could not bring suit in federal court.[244] Thus, the case removed Scott’s right
even to be heard, by removing him from the polity. Like the Guantánamo prisoners, he had no right to have
rights, and the negation of his political citizenship condemned him to the
unmitigated violence of slavery.
The denial
of habeas to Omar and the other prisoners similarly placed them outside the
communitarian consent that rights require. This expulsion from the polity authorizes the expulsion from
humanity that torture represents.
Here, we must remember that this expulsion was prefigured by the state
iconography that placed the prisoners outside the realm of human understanding,
and therefore of outside of humanity itself.[245]
Stripped of
the mediation of rights, Guantánamo reveals the essential and inescapable
violence of law. Politics may
dictate who is entitled to mediation, and what form it will take, but all are
subject to the force of the state that, fundamentally, animates law. The demand for rights is a plea to
blunt state force, and not to fundamentally reorganize the structure of power.
And so I
return to the litigation strategy we adopted in Omar’s case. By invoking rights, we sought
recognition of Omar in a polity of significance. In this way, rights hailed Omar into the community, though
his admission would depend upon community consent.
As Arendt’s
analysis suggests, the demand for recognition is tantamount to a claim to
humanity. To be human—to
rise above biological existence and to secure political and social
life—requires rights. And
yet, once more, this bid was subject to political forces. No amount of rights-claiming could
overcome a political will to deny the prisoners’ humanity.
In light of
this, our strategy can be understood in a third way: rights as resistance. By this account, the rights claim
sought not to escape the violence of the state, but to make that violence more
costly to the state. To continue
its brutal regime at Guantánamo, the government first would have to do violence
to rights; to lay its hands on Omar again, the state would have to crash
through his rights claims. Rather
than avoid the state’s confrontation with the individual, this strategy seeks
to expose it. The onus then shifts
from the prisoner trying to establish the existence of rights to the state
establishing their non-existence, from the individual establishing harm done to
the state justifying its own violence.
In some
respects, this strategy has worked.
So long as it could avoid any discussion of Guantánamo, as it long
attempted to do, the government could enact violence without political
cost. But rights claims force the
government into discourse in which the violence of the state is put on display,
and must be justified. The claim
of rights itself may interpose a membrane between the state and the individual
even if the right itself ultimately is found not to exist.
Put another
way, our rights-based strategy could be understood as interposing a protective
membrane between Omar and the state.
In this way, we wanted to mediate, and moderate, the relationship between the state and Omar, with the
hope of ultimately transforming the relationship from one of potentate and
biological mass to one more recognizable as warden and prisoner. This was a form of resistance to Omar’s
mistreatment, which required the state to either stop its violence, or engage
in it in the public forum of the court.
This approach had some success, as the worst of the mistreatment of Omar
and the other prisoners stopped once the government was forced to grapple with
it in the daylight of federal court.[246] And yet, Omar’s other fundamental
material conditions—indefinite detention, and trial before a substandard
tribunal—remained the same, just as the fundamentals of Guantánamo have
remained largely the same for the hundreds of other prisoners.
At the end
of the day, I believe our approach has not proven more successful because the
fundamental question of political citizenship has not been resolved in the
prisoners’ favor, and as I have argued, the success of even first-order rights
depends upon a priori political
membership.
When I have
rehearsed these arguments for others, particularly lawyers, the response I have
often gotten is that we did the best that we could, and that there was no
alternative. To argue the
existence of rights, and to do so forcefully, is to fulfill the professional
obligation of a lawyer. But this
strikes me as too weak a conception of professional obligation. I believe that the rights-based
approach has been worthy and necessary, but not merely because it was a form of
last-resort lawyering. Rather, the
rights-based lawyering has performed an essential role of mounting resistance
to the unbridled exercise of state violence, essential not because there is
nothing else to be done, but because of the opportunities and potentialities
that resistance creates. This is
consistent with what Scott Cummings has termed “constrained legalism,”[247]
for it capitalizes on what law can accomplish, even as it recognizes what it
law cannot.
IV. Resistance Reconsidered:
The Hunger-Striking
Prisoner and the Rights-Asserting
Lawyer
What is the
value of resistance, and what is the benefit of conceiving of rights in a
resistance frame? To answer this
question, I first examine modes of resistance engaged in directly by the
prisoners at Guantánamo—in particular, the hunger strike—and then
suggest that these forms of resistance and the litigation undertaken by the
prisoners’ lawyers are more similar than they might first seem. In so doing, I argue that the
rights-based litigation in which the lawyers engaged may be nothing
more—but importantly, nothing less—than a mode of resistance to
state violence.
The lawyers
representing the Guantánamo prisoners have done extraordinary work. Over a period of six years, they have
filed hundreds of motions, secured Supreme Court victories in two cases, and
obtained certiorari in a third. In
addition, they have engaged in the kind of multi-dimensional advocacy that is
frequently urged among social change theorists,[248]
working assiduously with the media, lobbying foreign governments, engaging
human rights institutions, and literally traveling the world—Germany,
Bosnia, Yemen, Saudi Arabia, Afghanistan, Pakistan, and many other
countries—to investigate and advocate their clients’ cases.[249] Despite these efforts, three realities
remain: (1) not a single prisoner has been released as the result of a court
order; (2) not a single prisoner has had the opportunity to meaningfully
contest the legality of his detention; and (3) perhaps most damning, the issue
before the Supreme Court in 2008 was, functionally, the same as that brought
before the Court in 2003: whether the prisoners can be heard in habeas corpus proceedings. Although the prisoners prevailed in
both cases, the victory in Rasul
necessarily has tempered enthusiasm for that in Boumediene. It is no
wonder, then, that in the eyes of many prisoners, nothing has changed.
This is not
to say that legal process does not work, for during this time many prisoners
have been released after litigation exposed the injustice of their
imprisonment. And yet, the seemingly sweeping victories of Rasul and Boumediene
co-exist with Guantánamo’s ongoing operation, suggesting that the litigation,
while effective, might be insufficient.
This unsatisfying record only deepened many of the
prisoners’ despair. When the
lawyers first got to Guantánamo, over two years after it opened, and after two
years of isolation, interrogation, and torture, there was on the part of many
detainees, a moment of hope. For
the first time since their capture, there was someone on their side. And though many of lawyers had
difficulty establishing or maintaining trust with their clients, given the
extraordinary conditions of Guantánamo,[250]
I believe that many of the detainees initially placed their faith in their
lawyers, and gave the lawyers the benefit of the doubt. But as the mountains of motions piled
up without meaningful change in the material conditions of the detainees’
lives, as the clarity of Rasul’s
promise of a hearing before an impartial judge dissolved into convolution,
formalism, and bureaucracy of federal litigation, the detainees’ despair began
to return. Former prisoner Jumah
al Dossari, who made numerous suicide attempts while at Guantánamo, expresses
the failures of Rasul’s promise and
the resulting despondency:
[One day] the military gave me a piece of paper that
laid out the allegations against me.
I had been n Guantanamo at that point for 2 1/2 years. My lawyer later told me that I had
received this paper as a result of a U.S. Supreme Court ruling that detainees
were to be allowed to have court hearings. We never got the promised hearings; instead, we went through
military hearings at Guantanamo in which we were not shown any evidence or
allowed to have lawyers. All we
got was the piece of paper.... Between suicide attempts, I tried desperately to
hold on to the few fleeting moments of light that presented themselves to
me. I met every few months with my
attorneys an felt better whenever they were in Guantanamo, but my despair would
return within a day of their departure.[251]
The
prisoners’ despair was twofold: first was a concern that the lawyers’ efforts
could not produce their freedom; second, and more troubling, was a growing view
among some of the detainees that not only could the lawyers not help, but they
were actually hurting. The
argument was that despite our promises and best intentions to be on their side,
we were complicit in the very structure of oppression of Guantánamo. From the very beginning, the most
compelling argument against Guantánamo was that it was lawless. But the presence of lawyers, the filing
of motions, the appearances before judges: all of these suggested that there
was law at Guantánamo, and worse, signified the existence of law, and
law-as-justice at Guantánamo. The
danger, then, was that our presence and participation, in both habeas proceedings
in Washington and in military commission proceedings at Guantánamo, legitimized
the very institution whose illegitimacy and illegality we sought to
establish. This trade-off is
familiar in any system of dubious legitimacy.
It is
against this backdrop of unsuccessful legal advocacy, of unending detention and
the persistence of legal forms such as “enemy combatancy,” the CSRTs and the
military commissions, that some prisoners have charted an alternative path of
action and protest. This has taken
many forms: throwing at guards a cocktail of feces, urine and saliva known as
an “A bomb”[252]; refusing
to meet with their lawyers[253];
boycotting or disrupting military commission proceedings[254]
(for those few who have them); suicides and suicide attempts[255];
and hunger strikes.[256] In each of these, the prisoners make
use of what little they have in order to engage in resistance. Bereft of any weapon with which to
strike their captors, they use the refuse of their own bodies, demonstrating
once more that Guantánamo is about the body. Unable to make any meaningful decision about the time they
eat, the time they exercise, or the time the lights come on or go off, they
exercise their agency by refusing their lawyers; forced into irregular and
unfair military commissions, they choose no process at all; pushed to the brink
of bare life, they choose no life at all.
Despite the
range of resistance activities that exist at Guantánamo, it is the hunger
strike on which I want to focus, and which I want to compare to the
rights-based litigation advanced by the lawyers. Hunger strikes have been a persistent feature of Guantánamo
since shortly after the interrogation and detention center opened. Some of the hunger strikes have been
short-lived, while others have been broken by a government’s policy of
forced-feeding.[257] There have been as many as two hundred
prisoners on hunger strike at any one time.[258] At the end of 2005, by which time the
habeas litigation had seriously stalled, eighty-four prisoners were on hunger
strike, leading the government to initiate its forced-feeding policy; by
February 2006, only three prisoners remained on hunger strike.[259]
Sami al-Haj
is one of the prisoners who remained on hunger strike. A Sudanese journalist for Al Jazeera,
al-Haj has been at Guantánamo for six years, on various and shifting charges
terrorist affiliations.[260] On January 7 2007, the fifth
anniversary of his imprisonment at Guantánamo, al-Haj began his hunger strike,[261]
which continued for sixteen months, the significance of which can only be
appreciated by examining how the government’s forced-feeding regime works upon
the prisoner’s body[262]:
First, the
prisoner refuses food and drink.
Initially, officials try to persuade the prisoner otherwise, offering
food and liquids. If those are
refused, the prisoner is taken to a medical facility and fed
intravenously. If the prisoner
refuses I.V. fluids, as many have, or pulls the tube out, then the government
places the prisoner is strapped into a restraint chair—it’s manufacturer
states, “It’s like a padded cell on wheels!”[263]—and
doctors force a feeding tube up the prisoner’s nose, down the throat, and into
the stomach.[264] This is done twice a day, without the
consent of the prisoner, even when the prisoner is competent to give such
consent.[265] As one of al-Haj’s lawyers has
described, “It’s really a regime to make it as painful and difficult as
possible,” a characterization that the government rejects.[266] As another of his lawyers stated, “Have
you ever pushed a 43-inch tube up your nostril and down into your throat? Tonight, Sami will suffer that for the
479th time.”[267]
As in
countless struggles before theirs, prisoners at Guantánamo have used hunger
strikes for multiple purposes: building solidarity, demanding improved
treatment, drawing attention to their plight.[268] Indeed, like so much else at present-day
Guantánamo, the hunger strikes have a precedent in the experience of Haitians
detained there in the early 1990s,[269]
but also, in the political struggles of figures as diverse as Gandhi, Bobby
Sands, Palestinians in Israeli jails, and U.S. prisoners protesting their harsh
conditions.[270] Hunger strikes are typically described
and understood as non-violent, and many of them are just that. But the persistence of a small number
of Guantánamo prisoners in their hunger strikes despite the government’s forced-feeding
regime suggests another motivation.
While peaceful in their execution, the hunger strikes seem intended to
provoke the enactment of violence upon the hunger striker.[271]
For al-Haj
and others, who know that day after day, their continued hunger strike will
bring only more painful forced feedings, their hunger strikes seem more than
just a passive form of resistance.
It is not that they would choose death rather than suffer further at
Guantánamo. Indeed, al-Haj stated
that he did not wish not to die, writing, “It is sad to be on this strike. I have no desire to die. I am suffering, hungry. The nights are very long and I cannot
sleep. But I will continue the
struggle until we get our rights.
The strike is the only way that I can protest.”[272] Now that the forced feeding regime is
in place, its brutality established and its ineluctability clear, the actions
of the hunger strikers are better understood as a more active form of
resistance. By refusing food and
water, al-Haj forced the unmediated confrontation between state power and the
individual of which Arendt wrote.
After more than a year of forced feeding, he knew that the government
possessed the means and the will to keep him from dying. But each day, he chose to make them
engage in violence upon his body in order to achieve their goal. In this way, he refused to be complicit
in his own captivity. But he also
refused to be passive in the face of state power. He might not have been able to stop it, but he was able to
mount resistance, to make the exercise of state violence more costly to the
state, to ensure that the cost for his captors’ degradation of him was their
degradation of themselves.
Hovering at the brink of annihilation—on the verge of bare
life—he nonetheless resisted total dehumanization by forcing his captors
to brutalize him. And in this way,
through this agency and even righteousness, his decrepit body, that withering
mass of vibrating flesh, was made and kept human again.
Sami al-Haj
was released from Guantánamo on May 2, 2008.[273]
We can
understand the radical hunger strike—radical not in its ideology, but in
its peaceful invitation to violence—as a rejection of the rights-based
strategy. Rather than making
recourse to rights to intercede in the conflict between state and individual,
the hunger striker seeks to force the confrontation. He understands that while rights may mediate the conflict to
the individual’s advantage, the mediation also serves the interests of the
state, as it both legitimizes and masks the violence of state action. The hunger striker has made a strategic
calculation that the invocation of rights at Guantánamo does more work for the
government than it does for the prisoner, for it contributes to the perception
that the prisoners are subject to legal process, that Guantánamo is governed by
law, while the government’s ability to maintain its detention regime is little
disturbed. Thus, the hunger
striker seeks to expose the inherent violence of the state by forcing upon the
government an unmediated confrontation.
It is only
logical that the site for confrontation between individual and the state is the
body, for once the mediating force of rights is removed, that is all that is
left. The inherent violence of the
Law of Guantánamo manifests once more, inextricably bound up with the
body. As Robert Cover wrote:
[T]he normative
world-building which constitutes “Law” is never just a mental or spiritual
act. A legal world is built only
to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme
and repulsive form of the organized violence of institutions. It reminds us that the interpretive
commitments of officials are realized, indeed, in the flesh. As long as that is so, the interpretive
commitments of a community which resists official law must also be realized in
the flesh, even if it be the flesh of its own adherents.[274]
Thus, just as Law is realized in the
body of the prisoner, so, too, is the prisoner’s resistance.[275]
Alternatively,
we might understand the foregrounding of the prisoner’s body in terms of
agency. So totalizing is the
violence of Guantánamo that it reduces the prisoner’s zone of autonomy to the
point that it is coterminous with the body; the only exercise of the autonomous
self is the exercise of the body itself, because nothing else is in the
prisoner’s control, and the body remains the last and final site in the contest
between state power and the individual.
There is nowhere else for the blows to land, and nothing else with which
to strike back.
The
condition of the prisoners at Guantánamo, and the forms of their resistance,
recall the insistently visceral, corporeal dimension of the work of Frantz
Fanon, for whom the body was inescapably implicated in the counterviolence of
the colonized.[276] Like the colonizer and the colonized,
the struggle at Guantánamo is “between brute realities and resistant bodies.”[277] As Homi Bhaba suggests, this resurgence
of the body is the consequence of radical dehumanization.[278] The colonized body is conditioned to
violence, thereby gaining a “visceral intelligence dedicated to the survival of
the body and spirit,”[279]
or as Fanon wrote, “The muscles of the colonized are always tensed.”[280]
As lawyers,
we sought to use rights to mediate the confrontation of state power and the
individual, but prisoners like Sami al-Haj have chosen to use their bodies to
force the unmediated confrontation.
We thought that rights might transform the realities of Guantánamo, but
to date they have not (though Boumediene suggests they still may). Al-Haj thought that his protest might
force his captors to return to their own humanity,[281]
and for more than a year it did not
(though ultimately he was released). In this way, the rights-based litigation of the lawyers and
the hunger strikes of the prisoners may be more alike than they are
dissimilar. Far from being
transformative, rights, in this context, might do something more modest: to
serve as resistance, a way of not necessarily stopping the violence of the
state, but of making it more costly.
In this way, rights claims are a domesticated hunger strike, a
rhetorical, abstracted and comparatively unmessy form of engaging state power.[282] For the government to continue its
practices at Guantánamo, it must crash through the protective membrane of
rights that we assert, just as it must force the feeding tube down Sami
al-Haj’s throat. Both strategies
possess transformative potential, but each may have to settle for being
resistance and nothing more, but also, nothing less.
My point is not to argue that the
prisoners’ hunger strikes have been more effective than the lawyers’
right-based litigation, or vice versa, nor do I seek to romanticize hunger
strikes or denigrate rights.
Rather, I see both strategies pulling in the same direction, and both
arising from the same conceptual and material challenge of confronting the
violence of state power. Moreover,
lawyers can play three critical roles with respect to hunger strikes, even
assuming that rights are ultimately insufficient to gain their clients’
freedom. First, through the
assertion of rights, they can dramatize the injustice of Guantánamo, thereby
making hunger strikes all the more logical and sympathetic. Second, for the many prisoners who are
either unwilling or unable to engage in such self-harming self-help as hunger
strikes, lawyers are able to use rights-based strategies to engage in
resistance on their behalf. In so
doing, lawyers take professional risk on their clients’ behalf, and in so doing
may provide sustenance to their clients by demonstrating in direct and
appreciable ways the lawyers’ willingness not just to provide legal
representation, but to vouch for the client’s humanity. Lastly, lawyers are able to help
publicize the hunger strikes—to amplify their clients’ pangs of hunger,
that they might be heard outside the cages of Guantánamo, and in the rarified
spaces of the territorial United States.
This proved to be a highly effective strategy in the case of Sami al-Haj,
whose lawyers used court filings to oppose the practice of forced feeding, and
simultaneously to raise the profile of al-Haj’s condition. Notably New York Times columnist Nicholas Kristof took up al-Haj’s cause,
writing about him on numerous occasions.[283]
But there
are at least three critical differences between the lawyers’ and the prisoners’
strategies. First, in the hunger
strike, the prisoner expresses his own agency. Indeed, key to the forced confrontation with state power is
that there is no intermediary. In
this way, the lawyer is not merely absent, she is rejected. Second, for the government to crash
through rights claims is a metaphysical violence; for it to force feed the
prisoners is physical violence, flesh on flesh, the body and will of one human
being struggling against the body and will of another. Finally, by rejecting rights and
achieving no better, but also no worse result, the hunger striker demonstrates
the weakness of rights at Guantánamo, as if to say, asserting rights is no more
effective than throwing them away. And yet, paradoxically, if we accept that
the end goal of the radical hunger striker is life and not death, humanity and
not bare life, then the hunger strike is for rights, for it is the right to
have rights which many of the prisoners understand to constitute their
humanity. As al-Haj wrote in his
diary, “I will continue the struggle until we get our rights.”[284]
Al-Haj’s
case points to how the rights-based and hunger-striking modes of resistance can
pull in the same direction, and how synergies can be achieved between the
two. At the same time, it is
important to recognize that the choice to engage in a hunger strike at
Guantánamo is, in my view, fundamentally existential, and is made by at least
some of the prisoners without expectation of publicity or calculation as to how
public knowledge might be used.
Thus, the hunger strike has value as an enactment of humanity, helped by
but ultimately indifferent to public attention.
How does the body speak in extremis, how does the mind
withstand?
--Homi Bhaba[285]
To be sure,
there have been lawyers representing Guantánamo prisoners who understood from
the beginning that the litigation would not be transformational, but was
instead the exercise in resistance which I have described here. I was not one of them. Rather, my professionally induced
rights tropism led me into the Guantánamo litigation in the immediate aftermath
of the Rasul decision, when it seemed
that the Supreme Court had settled the question of whether the prisoners had
the right to have rights, believing that through an insistence upon rights, I
could gain my client’s freedom. In
reality, the threshold question of the prisoner’s humanity—the question
of whether Omar was a child (and therefore human) or a terrorist (and therefore
not)—was the only contest in which we have ever really engaged. The violence of the state, I learned
(though perhaps I should have known all along), was not only reductive but
relentless, and would not be so easily contained.
Much like
the death penalty lawyer, our purpose was to intervene in the prevailing,
post-September 11th social
organization of violence.
Understanding this intervention as a resistance practice rather than a transformative
act yields three benefits. First,
it enlarges the time frame for action and result, de-centering the
transformative “rights moment”—the landmark case, the smoking gun
document, the game-changing revelation—and instead commits the lawyer to
a long-term oppositional stance, and a set of daily practices of objection and
contravention.[286] Second, the resistance frame
contextualizes the individual client representation within the larger
structures and operations of power, rejecting an atomistic view of lawyering or
a diffuse engagement with the state and opting instead for direct confrontation
with state violence. Lastly, the
resistance frame can provide the lawyer a source of sustenance in her and her
client’s protracted struggle. As
in death penalty litigation, resistance is mounted not merely because of a felt
need to “do something,” but because through tactical maneuver and strategic
intervention, previously unavailable spaces can be opened, new realities can be
created, and new opportunities for more meaningful intervention realized. Lawyers can help gain their clients
release, even if not through court order; moments of transformative potential,
though fleeting, can be created; still others can be exploited. Unlike the traditional litigation
model, which presupposes a beginning, middle and perhaps most importantly, an
end, resistance rejects linearity, and is not strictly teleological. It thus demands that the
resister—whether lawyer or prisoner—search for what altered
realities might be created through the act of resistance, without knowing what
or where they will be.
But the
resistance frame also points to the limits of our work as lawyers, and the
limits of the agentic lawyer-client relationship. That the struggle of Guantánamo is fundamentally one of
humanity, the social and political meaning of the biological flesh warehoused
there, makes inevitable the direct participation of the prisoners in the
conflict. The process of
representation at Guantánamo recapitulates the divestiture of agency on which
Guantánamo was built, and for many (though not all) of the prisoners, unacceptably
so. The hunger strike is a
profound and necessary assertion of the self—messy, unabstracted, and
inescapably human. Because
Guantánamo places the prisoners on the razor’s edge of bare life, such direct
resistance is not merely an act of defiance or a means of retaliation, but a
way of staying human. The crisis
the prisoners face—year after year of unending detention—is
fundamentally existential, and it therefore follows that the prisoners would
want, and need, to assert what agency they can.
Ultimately,
the body in extremis must speak.
For the lawyers, our challenge is to listen and to amplify, to be in
conversation, to speak when our clients cannot, and sometimes to be in silence,
so that the clients’ assertion of humanity might be heard. The prisoners’ resistance thus
underscores a far more basic value of the lawyers’ rights assertion: it, too,
is resistance, and it, too, can help to keep the prisoners human. This maintenance of humanity, or its
restoration, is the prerequisite for freedom.
*
Professor of Law, American University Washington College of Law, Visiting
Professor of Law, Georgetown University Law Center. Earlier versions of this Essay were presented at faculty
workshops at American University Washington College of Law, Temple Law School,
Washington University School of Law, and Georgetown University Law Center, and
I have benefited enormously from the insight and critique I received in
each. My thanks to Martha Minow,
Rick Abel, Leti Volpp, Jean Koh Peters, Mike Wishnie, Joe Margulies, Sameer
Ashar, Baher Azmy, Scott Cummings, Teemu Ruskola, Sonia Katyal, Peter
Margulies, and Kimberlé Crenshaw and students in her Advanced Critical Race
Theory Seminar at UCLA School of Law, where I also presented the paper. My thanks to Dean Claudio Grossman for
his generous support of this work.
I am grateful to my colleague and friend, Rick Wilson, with whom I
co-counseled on the work discussed here, as well as Kristine Huskey, and the
extraordinary students in our International Human Rights Law Clinic who worked
on Omar Khadr’s case. I received
exceptional research assistance from Mark Vorkink.
[1] See, e.g., Ronald
Dworkin, Why It Was a Great Victory,
55 N.Y. Rev. Books No. 13, Aug.
14, 2008.
[2] Boumediene v. Bush, 128 S. Ct. 2229 (2008).
[3] Rasul v. Bush, 542 U.S. 466 (2004).
[4] In Rasul,
the Court held that the federal habeas statute, 28 U.S.C. §2241, provides for
habeas jurisdiction over the detention of Guantánamo prisoners. As discussed in greater detail in
Section (considering whether the
federal habeas statute, 28 U.S.C. § 2241, as amended by the Military
Commissions Act of 2006, provides for habeas jurisdiction over the detention of
Guantánamo prisoners), with Rasul v.
Bush 542 U.S. 466 (2004) (holding that
[5] Although my description and analysis of Guantánamo are
deeply informed by my experience representing a prisoner there, the fact of
representation limits what I am ethically able to disclose. See
Model R. Prof. Conduct R.1.6 (Confidentiality
of Information). As such, my
reporting on his case is limited to what is in the public record, and even then
errs on the side of non-disclosure.
As of this writing, he is still imprisoned at Guantánamo, and I no
longer represent him, thus making his consent to further disclosure by me
impossible.
[6] Hannah Arendt,
Origins of Totalitarianism 376 (Schocken Books 2004).
[7] See generally Mary Ann Glendon, Rights Talk: The
Impoverishment of Political Discourse (1991).
[8] See Mari
Matsuda, Looking to the Bottom: Critical
Legal Studies and Reparations, 22
Harv. C.R.-C.L. L. Rev. 323, 393-94 (1987) (defining critical legalism
as “a legal concept that has transformative power and that avoids the traps of
individualism, neutrality and indeterminacy that plague many mainstream
concepts of rights or legal principles”).
[9] Id. at 334.
[10] Juma al Dossari, I’m
Home, but Still Haunted by Guantanamo, Wash.
Post, Aug. 17, 2008, at B4. Al Dossari was imprisoned at Guantánamo from
January 2005 until July 2007, at which time he was released without charge.
[11] Throughout this Essay, I refer to the individuals
incarcerated at Guantánamo as “prisoners” rather than “detainees,” the term
favored by the Government. The
government refusal to refer to those incarcerated as “prisoners” is of a piece
with its invention of the “enemy combatant” designation, and its position that
they are not prisoners of war under the Geneva Conventions. See
infra notes 62 and accompanying text.
The doctrinal implications of the choice of terminology aside, I find
that the term “detainee” obscures the factual reality of the long-term, and
indeed potentially lifetime, incarceration of those at Guantánamo, a reality I
believe is better captured by describing them as prisoners.
[12] Although he is still at Guantánamo as of this writing,
I no longer represent Omar Khadr.
With colleagues and students in the International Human Rights Law
Clinic at American University Washington College of Law, I represented Omar
from July 2004 to April 2007. He
continues to be represented by military defense counsel and by Canadian
civilian counsel.
[13] See
Memorandum of Muneer I. Ahmad & Richard J. Wilson to Habeas Privilege Team
Re. Request for Classification Review, O.K. v. Bush, 04-CV-01136 (JDB) (copy on file with author). For a recitation of other instances of
mistreatment that Omar experienced, see O.K. v. Bush, 377 F. Supp. 2d 102,
106-10 (D.D.C. 2005).
[14] Austin Sarat & Thomas R. Kearns, Editorial Introduction, in Legal
Rights: Historical and Philosophical Perspectives 1, 6-7 (Austin Sarat
& Thomas R. Kearns eds., 1997).
[15] Derrida has described this temporality as the
“mystical foundation” of law’s authority, a formulation he borrows from Pascal:
Nothing according to reason alone, is just in itself;
all changes with time. Custom
creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its
authority. Whoever carries it back
to its first principle destroys it.
Jacques Derrida, Force
of Law: The Mystical Foundation of Authority, in Deconstruction and the Possibility of Justice 230, 239 (quoting
Blaise Pascal, Pensées No. 294, available at
http://oregonstate.edu/instruct/phl302/
texts/pascal/pensees-b.html#SECTION%20V) (Drucilla
Cornell, Michael Rosenfeld & David Gray Carlson eds., 1992).
[16] Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives From the Women’s
Movement, 61 N.Y.U. L. Rev. 589
(1986).
[17] See Clifford Geertz, Negara: The Theatre State in
Nineteenth-Century Bali (1980); Bronislaw Malinowski, The Family Among The
Australian Aborigines: A Sociological Study (1963); Claude Lévi-Strauss,
Totemism (1963).
[18] Geertz, supra note 17.
[19] “[L]aw is predominantly a system of meaning rather
than an imposition of force.”
Robert Cover, The Supreme Court,
1982 Term—Forward: Nomos and Narrative, 97 Harv. L. Rev. 4, 12 (1983) [hereinafter “Nomos and Narrative”].
[20] Id. at 8.
[21] Id. at 4-5.
[22] Yet narrative does not merely reflect a social
order. The discursive act of
narration renders that social order, and its social meaning, flexible and
dynamic, creating realities as it describes them. See Bruce
Lincoln, Theorizing Myth: Narrative, Ideology, and Scholarship 149
(1999) (describing a political theory of narrative that “recognizes the
capacity of narrators to modify the details of the[ir] stories, . . . introducing
changes in the classificatory order . . . that reflect their subject position
and advance their interest”).
Narrative derives from and generates substantiality. The act of narration is transformed
into an ideological contest, in which discursive interpretation—the
naming of actors and ideas, the foregrounding of values and the selection of
chronologies—simultaneously reflects and constitutes the social reality
it seeks to create. See Clifford Geertz, Ideology as a Cultural System, in Ideology and Discontent 63-64 (David E.
Apter ed., 1964) (“[T]he function of ideology is to make an autonomous politics
possible by providing the authoritative concepts that render it
meaningful.”). Narrative and
social reality thus are locked in “a symbiotic relation of co-reproduction,
each one being simultaneously producer and product of the other.” Lincoln, supra, at 210.
[23] See Anthony G. Amsterdam & Jerome Bruner,
Minding the Law 113 (2000) (describing narrative as “the necessary discourse of law”) (emphasis
in original).
[24] Cover, Nomos and
Narrative, supra note 19, at 5, 25.
[25] See John
Mintz, U.S. to Free 7 Held in Cuba, Wash. Post, Oct. 23, 2002, at A02 (quoting Donald Rumsfeld’s description of
the prisoners as the “worst of the worst”).
[26] See
Department of Defense News Briefing, Secretary Rumsfeld and Gen. Myers, Jan.
11, 2002,
http://www.defenselink.mil/Transcripts/Transcript.aspx?TranscriptID=2031.
[27] See generally
Gitmo Photos, U.S. Department of Defense, April 5, 2006,
http://www.defenselink.mil/home/features/gitmo/facilities.html.
[28] I put “war on terrorism” in scare quotes because as
currently conducted, U.S. anti-terrorism efforts encompass not only combat in
places such as in Afghanistan, but the capture of individuals far from any
battlefield, such as in Bosnia, Gambia, and Zambia. Similarly, anti-terrorism policy includes practices as
disparate as warrantless wiretapping of U.S. citizens, see James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts,
N.Y. Times, December 16, 2005 at
A01, and rendering of noncitizens to third countries where they have
alleged torture, see Report of the Events Related to Maher Arar,
Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar (2006), available at
http://www.ararcommission.ca/eng/AR_English.pdf. The “war on terrorism” is therefore a war in metaphor
only. For further discussion of
the dangerous consequences of accepting this metaphor, see infra notes 28-32 and accompanying text. For similar critiques of the war terminology,
see Joseph
Margulies, Guantánamo and the Abuse of Presidential Power 1, 43 (2006)
(arguing that the “war on terror” justification has resulted in “an
Administration that exercises substantially more power in the conduct of
military operations, with fewer restraints, than ever before”); see also Transcript of Oral Argument,
Hamdan v. Rumsfeld, 542
U.S. 557 (2006), available
at
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-184.pdf.
[29] The history of Haitian detention at Guantánamo is a
particularly ugly one. See Brandt
Goldstein, Storming the Court (2005); Harold Hongju Koh, The “Haiti Paradigm” in United States Human
Rights Policy, 103 Yale L. J. 2391
(1994); The
Lowenstein Human Rights Clinic, Aliens
and the Duty of Nonrefoulement: Haitian Centers Council v. McNary, 6 Harv. Hum. Rts. J. 1 (1993). Amy Kaplan has linked
this racialized history of Guantánamo to its present usage, writing:
The current prisoners not only first literally
inhabited the camps built for the Haitian and Cuban refugees, but they also
continue to inhabit the racialized images that accrued over the century in the
imperial outpost of Guantánamo: images of shackled slaves, infected bodies,
revolutionary subjects, and undesirable immigrants. The prisoners fill the vacated space of colonized subjects,
in which terrorism is imagined as an infectious disease of racialized bodies in
need of quarantine. The category
of “enemy combatants” effaces all differences among the prisoners and also
draws on these older imperial codes ...
Thus “enemy combatant” is a racialized category, not only because of
rampant racism toward Arabs and Muslims, but also because of this history. Stereotypes of the colonized,
immigrants, refugees, aliens, criminals, and revolutionaries are intertwined
with those of terrorists and identified with racially marked bodies in an
imperial system that not only colonizes spaces outside U.S. territories but
also regulates the entry of people migrating across the borders of the United
States.
Amy Kaplan, Where
is Guantánamo?, 57 Am. Quarterly 831,
840 (2005).
[30] The argument regarding structural racism in the U.S.
criminal justice system, culminating in the disproportionate imprisonment of
African Americans and Latinos, is a familiar one. See, e.g., Michael J. Lynch & E. Britt Patterson, Race
and Criminal Justice (1991) (compiling several articles discussing the
impact of racial biases on all stages of the criminal justice system); Angela
Davis, Prosecution and Race: The Power
and Privilege of Discretion, 67 Fordham
L. Rev. 13, 25-30 (1998-1999) (discussing the discriminatory impact of
police officer and prosecutorial discretion and describing them as further
manifestations of racial disparities in the criminal justice system).
[31] See, e.g., Brian Masaru Hayashi, Democratizing the Enemy:
The Japanese American Internment (2004) (concluding U.S. internment of
Japanese Americans during World War II furthered broader socio-political goals
of the U.S. government vis-à-vis the Japanese American population); Tetsuden Kashima, Judgment Without Trial:
Japanese American Imprisonment During World War II (2003) (arguing that
plans for U.S. internment and incarceration of Japanese Americans far preceded
the attack on Pearl Harbor in 1941 and were developed as early as the 1920s in
preparation of a perceived future conflict with Japan).
[32] I have written previously on the racial construction
of the terrorist. See Muneer I. Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 Cal. L. Rev. 1259 (2004); Muneer
Ahmad, Homeland Insecurities: Racial
Violence the Day After September 11, 72
Soc. Text 101 (2002). See also Leti Volpp, The Citizen and the Terrorist, 49 UCLA L.
Rev. 1575 (2002); Margaret Chon & Donna E. Arzt, Walking While Muslim, 68 Law & Contemp. Probs. 215 (2005).
[33] See Johnson
v. Texas, 509 U.S. 350, 367 (1993) (“[A] lack of maturity and an underdeveloped
sense of responsibility are found in youth more often than in adults and are
more understandable among the young. These qualities often result in impetuous and ill-considered
actions and decisions.”); See also
Brief of the American Medical Association, American Psychiatric Association,
American Society for Adolescent Psychiatry, American Academy of Child &
Adolescent Psychiatry, American Academy of Psychiatry and the Law, National
Association of Social Workers, Missouri Chapter of the National Association of
Social Workers, and National Mental Health Association as Amici Curiae in
Support of Respondent, Roper v. Simmons, 543 U.S. 551 (2005).
[34] See Cover, Nomos and Narrative, supra
note 19, at 33 (“[T]he nomos of
officialdom is also ‘particular’ . . . . And it, too, reaches out for
validation and seeks to extend its legitimacy by gaining acceptance from the
normative world that lies outside its core.”).
[35] See id. at
40 (“[T]he jurisgenerative principle by which legal
meaning proliferates in all communities never exists in isolation from
violence.”).
[36] See Ahmad, Rage Shared by Law, supra note 32, at 1265-82; Volpp, supra note 32, at 1576-86.
[37] Volpp, supra
note 32, at 1592-98.
[38] For a discussion of the performative dimensions of
Arab, Muslim, and South Asian identities in the aftermath of September 11th,
see Sunita Patel, Performative Aspects of Race: “Arab, Muslim, And South Asian” Racial
Formation After September 11, 10 Asian Pac. Am. L. J. 61 (2005); Chon
& Arzt, supra note 32. For
a discussion of performance theory and identity, see Devon
W. Carbado & Mitu Gulati, Working
Identity, 85 Cornell L. Rev.
1259 (2000); Nan D. Hunter, Expressive
Identity: Recuperating Dissent for Equality, 35 Harv. C.R.-C.L. L.
Rev. 1 (2000); Kenji Yoshino, Covering,
111 Yale L.J. 769 (2002).
[39] See Jasbir
K. Puar & Amit S. Rai, Monster,
Terrorist, Fag: The War on Terrorism and the Production of Docile Patriots,
20 Social Text 117 (2002).
[40] See Edward Said, Orientalism (1978).
[41] Jean-Paul
Sartre, Colonialism and Neocolonialsm 149 (Haddour, Brewer &
McWilliams trans., Routledge 2001)
[42] See Volpp, supra note 32, at 1586-91
(characterizing the post-September 11th construction of the terrorist as a
redeployment of Orientalist tropes).
[43] Jean-Paul Sartre, Preface
to Frantz Fanon, The Wretched of the
Earth lviii (Richard Philcox trans., Grove Press 2004) (1964).
[44] See United
States v. Khadr, Charge Sheet, April 4, 2007, available at http://www.defenselink.mil/news/Apr2007/Khadrreferral.pdf.
[45] See Michelle Shephard, Guantanamo’s Child: The
Untold Story of Omar Khadr __ (2008).
[46] United States v. Khadr, Charge Sheet, supra note 44.
[47] See infra
Sec. II.B.1.
[48] See infra
notes Sec. II.A.
[49] For an exhaustive discussion of Omar’s family, see Shephard, supra note 45.
[50] Counsel visits were enabled by the Supreme Court’s
decision in Rasul v. Bush, handed
down on June 30, 2004, which recognized the right of Guantánamo prisoners
challenge the legality of their detention by way of habeas corpus. 542 U.S. 466 (2004). Once the right of the prisoners to file
habeas petitions was established, a right of access to counsel (though not a
right to counsel at government expense) followed. Al Odah v. United States, No. 02-828 (CKK) (D.D.C.
Oct. 20, 2004) (Memorandum Opinion), available
at guantanamobile.org/pdf/kollar-kotelly.pdf.
[51] See supra
note 27 and accompanying text. Representatives images are available at http://globalresearch.ca/articles/CRG211A.html. Images of U.S. military
transports of prisoners were anonymously sent to media sources on November 8,
2002. Although the U.S. government
was unaware who leaked the photos, it verified the photos were authentic. See
Pentagon Probes Anonymous Release of
Detainee Photos: Pictures Show Restrained Men in Military Transport,
CNN.com (Nov. 8, 2002), available at http://archives.cnn.com/2002/US/11/08/detainees.pictures.
[52] See Margulies, supra note 28, at 27
(discussing how U.S. interrogators at Guantánamo Bay justified barring
prisoners’ access to counsel because this “instills in the prisoner the
dangerous and misguided belief that he may secure relief through an adversarial
civil litigation process—that is, the courts . . . . The prisoner must
realize that his welfare is wholly in the hands of his interrogators . . .
[whose] battle is won only then the prisoner believes all is lost, for only
then will he abandon his resistance”).
[53] See
Transcript of Oral Argument at 5, Rasul v. Bush, 542 U.S. 466 (2004) (No.
03-334) (discussing protection of iguanas at Guantánamo under U.S. law).
[54] See Paul
Koring, The Uneasy Mix Called Guantanamo,
Globe and Mail, Jan. 14, 2006, at
A19 (describing the “TNC Hills,” a housing complex where most of Guantanamo’s
labor force lives); Matthew Hay Brown, Guantanamo Base Provides an Enclave of Small-Town Life, Hartford Courant, Dec. 26, 2003, at A27
(noting that many of Guantanamo’s Jamaican and Filipino laborers have worked on
the base for over thirty years).
[55] See Michael
Wishnie, Immigrants and the Right to
Petition, 78 N.Y.U. L. Rev. 667
(2003).
[56] Presidential Military Order: Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833
(Nov. 13, 2001).
[57] Although U.S. military commanders initially held the
Geneva Conventions applicable to the conflict in Afghanistan, in a memo dated
January 9, 2002 from then Deputy Assistant Attorney General John Yoo, President
Bush was advised that neither Al Qaeda nor the Taliban enjoyed protection under
the Geneva Conventions. Memorandum
from Deputy Assistant Attorney General John Yoo, Office of Legal Counsel, to
General Counsel William J. Haynes II, Dep’t of Defense, Application of Treaties
and Laws to al Qaeda and Taliban Detainees, Jan. 9, 2002, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/
02.01.09.pdf. Anticipating objections from other
members of the Administration, Alberto Gonzales wrote to President Bush on
January 25, 2002 confirming the legal conclusions of the earlier memo. Memorandum from Alberto R. Gonzales,
Counsel to the President, to President George W. Bush, Decision Re: Application
of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 25, 2002, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/
02.01.25.pdf. “The nature of the new war . . .
renders obsolete Geneva’s strict limitations . . . and renders quaint some of
its provisions . . . .” Id. Both memos stressed the necessity of flexibility in pursing
the “war on terrorism” as justification for suspension of the Conventions.
In
response to Gonzales’ recommendation, then-Secretary of State Colin Powell
wrote the President the following day, arguing that suspension of the Geneva
Conventions would evoke wide international condemnation and increase the
vulnerability of the U.S. to legal challenges. Memorandum from Secretary of State Colin L. Powell, U.S.
Dep’t of State, to Alberto R. Gonzales, Counsel to the President, Draft
Decision Memorandum to the President on the Applicability of the Geneva
Conventions to the Conflict in Afghanistan, Jan. 26, 2002, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.26.pdf. As such, Powell urged the continued
applicability of the Geneva Conventions to the conflict in Afghanistan, but
maintained that neither members of Al Qaeda nor the Taliban could enjoy
Prisoner of War status. Id. Echoing Powell’s recommendations, U.S. State Department
Legal Advisor William H. Taft wrote the President, rejecting the Office of Legal
Counsel’s justifications for the inapplicability of the Conventions. Memorandum from Legal Advisor William
H. Taft IV, U.S. Dep’t of State, to Alberto R. Gonzales, Counsel to the
President, Comments on Your Paper on the Geneva Convention, Feb. 2, 2002, available at
http://www.nytimes.com/packages/html/politics/20040608_DOC.pdf. Expressing the consensus from senior
lawyers at the Department of State, Taft reiterated Powell’s argument for the
continued application of the Conventions to the conflict in Afghanistan. Id. That Powell and Taft’s recommendation
represented the opinions of career legal advisors from the Department of State
as well as the majority of military officials was insufficient to persuade the
President.
On February 7, 2002, President Bush issued a memo rejecting Powell and
Taft’s conclusions and rendering a final decision. Memorandum from President George W. Bush to the Vice
President, et al, Humane Treatment of al Qaeda and Taliban Detainees, Feb. 7,
2002, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf. Accepting the conclusions of the
Justice Department, Bush declared the Geneva Conventions inapplicable to
members of Al Qaeda. Id. Moreover, while claiming inherent authority to suspend the
Conventions to the conflict in Afghanistan, he declined to exercise that
authority. Id. Instead, he
classified members of the Taliban as enemy combatants and asserted that “as a
matter of policy, the United States Armed Forces shall continue to treat
detainees humanely and, to the extent appropriate and consistent with military
necessity, in a manner consistent with the principles of Geneva.” Id.
[58] In the initial—now notorious—August 2002
memo drafted by the Office of Legal Counsel on permissible interrogation
techniques, acts tantamount to torture were narrowly defined to include only
those specifically intended to produce harm of a gravity akin to “death, organ
failure, or the permanent impairment of a significant body function.” Office of Legal Counsel, U.S. Dep’t of
Justice, Memorandum for Alberto R. Gonzales, Counsel to the President, Re:
Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A, Aug. 1,
2002, available at
http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf [hereinafter “Bybee
Memo”]. Though later rescinded,
the Bybee Memo, named after its principal author, then-Assistant Attorney
General for the Office of Legal Counsel, Jay Bybee, provided the legal
framework for the authorization of interrogation techniques previously
considered violative of U.S. legal norms under domestic and international
law. Moreover, it tacitly
authorized the explicit use of torture in limited circumstances where justified
by necessity. Id. (Bybee was
subsequently nominated and confirmed to the U.S. Court of Appeals for the Ninth
Circuit.)
A
subsequent memorandum, written by then-Deputy Assistant Attorney General John
Yoo, went even further, and in shockingly poor legal reasoning, suggested that
the claim of wartime executive authority could excuse interrogators from
criminal liability. In one
section, for example, Yoo argues:
If a government defendant were to harm an enemy
combatant during an interrogation in a manner that might arguably violate a
criminal prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case, we believe that he could
argue that the executive branch's constitutional authority to protect the
nation from attack justified his actions.
Memorandum
for William J. Haynes II, General Counsel of the Department of Defense,
Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the
United States 80, March 14, 2003, available
at http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf
(Part 1) and
http://gulcfac.typepad.com/georgetown_university_law/files/march14.memo.part2.pdf
(Part 2).
Relying on this legal framework, numerous revisions were made to
operations manuals of the U.S. armed forces authorizing new interrogation techniques. Responding to a perceived lack of
progress with interrogations, Guantanamo Commander Major General Michael E.
Dunlavey sought authorization for the use of techniques of greater severity
than those previously permitted under the 1992 version of the Army Field Manual
34-52. Memorandum for Commander,
Joint Task Force 170, Legal Brief on Proposed Counter-Resistance Strategies,
Oct. 11, 2002, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf. These included: Category II techniques
(stress positions, extended isolation, hooding, 20-hour interrogations,
restriction on meals, and exploitation of individual phobias); and Category III
techniques (imminent death threats, “misperception of suffocation,” and “mild,
non-injurious physical contact”), each of the latter category requiring
specific prior approval. Id. Secretary of Defense Rumsfeld approved the use of Category
II techniques as well as mild, non-injurious on December 2, 2002. Action Memo from General Counsel William
J. Haynes, Dep’t of Defense, for Secretary of Defense Donald H. Rumsfeld,
Counter-Resistance Techniques, Dec. 2, 2002, available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf. Included next to his signature was a
hand-written note: “However, I stand for 8-10 hours a day. Why is standing limited to 4
hours? D.R.” Id. Secretary Rumsfeld would later approve
seven more interrogation techniques (including environmental manipulation and
sleep adjustment), thus extending explicit authorization to a total of
twenty-four severe methods for use
at Guantanamo Bay. Memorandum from
Secretary of Defense Donald H. Rumsfeld to Commander, U.S. Southern Command,
Counter-Resistance Techniques in the War on Terrorism, Apr. 16, 2003, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127
/03.04.16.pdf. For a
comprehensive discussion of the Administration’s evolving policy on permissible
interrogation procedures, see Rick Abel, Contesting Legality in the United
States after September 11, in Fighting
for Political Freedom: Comparative Studies of the Legal Complex and Political
Liberalism 361 (Terence C. Halliday, Lucien Karpik, and Malcolm M.
Feeley eds., 2007). For one of
many critiques of John Yoo’s legal advice, see Peter Margulies, True Believers at Law: National Security
Agendas, the Regulation of Lawyers, and the Separation of Powers, __ Mar. L. Rev. __ (forthcoming 2008), available at
http://ssrn.com/abstract=1097314.
[59] 542 U.S. 466 (2004).
[60] 542 U.S. 507 (2004).
[61] 548 U.S. 557 (2006).
[62] Pub. L. No. 109-148, §1003,
119 Stat. 2739.
[63] Pub. L. No. 109-366, 120 Stat. 2600 (codified at 10
U.S.C. § 948-50; 18 U.S.C. § 2441; and 28 U.S.C. § 2241(c)-(e)) (2006).
[64] 128 S. Ct. 2229 (2008)
[65] Gerald L. Neuman, Anomalous
Zones, 48 Stan. L. Rev. 1197, 1229
(1996).
[66] Haitian Refugee Ctr. V. Baker, 953 F. 2d 1498, 1513 n.
8 (11th Cir. 1992).
[67] Haitian Ctrs. Council v. McNary, 969 F. 2d 1326 (2d
Cir. 1992), vacated as moot sub nom
Sale v. Hatian Ctrs. Council, 509 U.S. 918 (1993); Haitian Ctrs. Council v.
Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993) (vacated by Stipulated Order Approving
Class Action Settlement Agreement (Feb. 22, 1994)).
[68] Neuman, supra
note 65, at 1232.
[69] Id.
[70] Neal Kumar Katyal, Hamdan
v. Rumsfeld: The Academy Goes to Practice, 120
Harv. L. Rev. 65, 70 (2006) (distinguishing
the traditional theory of a unitary executive from the “wild-eyed theory, masquerading as
a ‘unitary executive’ concept, that purported to allow ... [the
Administration] to defy and creatively reinterpret even the will of Congress—all
supposedly entirely consistent with the Constitution. This virulent strain of
the unitary executive, which emphasized the President’s ‘inherent
authority’ to act, gained traction and led to a number of exceptionally
dangerous policies, culminating in the so-called ‘torture memorandum.’”)
(internal citations omitted).
[71] Presidential Military Order, supra note 56.
[72] See supra note
57 and accompanying text.
[73] See supra
note 57 and accompanying text.
[74] 542 U.S. 466 (2004). For an excellent analysis of Rasul, see Baher Azmy, Rasul v. Bush and the Intra-Territorial Constitution 62 N.Y.U. Ann. Surv. Am. L. 369 (2007).
[75] See In re
Guantanamo Detainee Cases, 355 F. Supp. 2d. 433 (D.D.C. 2005); Khalid v. Bush,
355 F. Supp. 2d 311 (D.D.C. 2005).
[76] See Motion
to Dismiss or for Judgment as a Matter
of Law and Response Pursuant to the Court's Sept. 20, 2004 Order, Khadr v.
Bush, 04-CV-01136JDB (D.D.C. Oct. 4, 2004).
[77] Senior Judge Joyce Hens Green issued an opinion that
found the prisoners to have Fifth Amendment due process rights. In re Guantanamo Detainee Cases, 355 F.
Supp. 2d. 433 (D.D.C. 2005). Judge
Richard Leon reached the opposite conclusion. Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).
[78] Pub.
L. No. 109-148, §1003, 119 Stat. 2739.
[79] 126 S.Ct. 2749, 2762-2769 (2006).
[80] Much of the parties’ debate over whether the prisoners
possess constitutional or statutory rights has centered on footnote 15 of the
majority opinion in Rasul, which
states:
Petitioners’
allegations—that, although they have engaged neither in combat nor in
acts of terrorism against the United States, they have been held in Executive
detention for more than two years in territory subject to the long-term,
exclusive jurisdiction and control of the United States, without access to counsel
and without being charged with any wrongdoing—unquestionably describe
custody in violation of the Constitution or laws or treaties of the United
States. 28 U. S. C. §2241(c)(3).
Rasul v. Bush, 542 U.S. 466, at 483 n. 15 (2004).
[81] See Owen
Fiss, Dombrowski, 86 Yale L. J. 1103 (1977).
[82] Cover, Nomos and
Narrative, supra note 19, at 57.
[83] Id. at 156
(“[T]he judge—armed with no inherently superior interpretive insight, no
necessarily better law—must separate the exercise of violence from his
own person.”).
[84] Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat.
2600.
[85] See id. § 7, amending 28 U.S.C. § 2241(e)(1)
(“No court, justice, or judge shall have jurisdiction
to hear or consider an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the United States who has been determined . . .
[an] enemy combatant or is awaiting such determination.”). I have written previously about the
implications of the MCA’s habeas-stripping provisions for noncitizens within the
United States. Muneer I. Ahmad, Guantánamo Is Here: The Military Commissions
Act and Noncitizen Vulnerability, 2007
U. Chi. Legal F. 1 (2007).
[86] Responding to the Hamdan
decision—including the Court’s finding that the commissions, as then
constituted, violated Common Article 3, the MCA sought to cabin the scope and
application of the Geneva Conventions. See 10 U.S.C. § 948b(d)(2)(f)
(defining the military commissions as per
se “regularly constituted courts” under Common Article 3 of the Geneva
Conventions); 10 U.S.C §
948b(d)(2)(g) (declaring that the Geneva Conventions may not be invoked as a
source of rights by enemy combatants);
MCA, supra note 84, § 5(a)
(barring the use of the Geneva Conventions as a source of rights in any habeas
or other civil proceeding in which the U.S. or its agents are a party); id.,
§ 6(a)(3)(A) (granted the U.S. President inherent authority to interpret the
meaning and application of the Geneva Conventions, including the definition of
“grave braches”).
Numerous commentators have argued against this evisceration of the
Conventions under U.S. law. See generally Carlos Manuel Vázquez, The Military Commissions Act, the Geneva
Conventions, and the Courts: A Critical Guide, 101 Am. J. Int’l L. 73 (2007); Mark A. Drumbl, The
Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International
Criminal Law, 75 Geo. Wash. L. Rev.
1165 (2007).
[87] See MCA, supra note 84, § 3 (adding Chapter 47A
to Title 10 of the U.S. Code).
[88] See generally Robert
M. Cover, The Folktales of Justice, in Narrative, Violence and the Law: The Essays of
Robert Cover 173, 174-75 (Martha Minow, Michael Ryan & Austin Sarat
eds., 1992) (discussing the value of law in legitimizing “the exercise of
coercion and ... the organization of authority and privilege”) [hereinafter “Folktales of Justice”].
[89] See generally,
Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71 U.N. GAOR,
3d Sess., 1st plen. mtg., U.N. Doc. A/810, Art. 10 (Dec. 12, 1948) (“Everyone
is entitled to all the rights and freedoms set forth in this Declaration . .
. [and] no distinction shall be
made on the basis of the political, jurisdictional or international status of
the country or territory to which a person belongs . . . .”); Pieter van Dijk, A Common Standard of Achievement About
Universal Validity and Uniform Interpretation of International Human Rights
Norms, 13 Neth. Q. Hum. Rts.
105 (1995) (recognizing the universality of a core set of human rights as
evidenced by broad codification in international and regional legal
conventions).
[90] Cover, Folktales
of Justice, supra note 88, at
174-75. But see Alan Hyde, The
Concept of Legitimation in the Sociology of Law 1983 Wisc. L. Rev. 389 (1983) (questioning the existence of
a causal relationship between actions by legal institutions and popular belief
in the legitimacy of government).
Although Hyde raises an empirical question regarding causality between
state action and popular consciousness, my argument here is about the
government’s belief in the importance
of making the commissions appear legitimate.
[91] The Combatant Status Review Tribunal were created by
the Administration after the Supreme Court decided the Rasul case, and the same day, the case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004). For a fuller description of the origins and nature of the
CSRT, see infra note 173 and
accompanying text.
[92] U.S. Releases
Gitmo Detainee Names, Associated
Press, Mar. 4, 2006, available at
http://www.cbsnews.com/stories/2006/03/02/terror/main1364552.shtml.
[93] Report on
Torture and Cruel, Inhuman and Degrading Treatment of Prisoners at Guantánamo
Bay, Cuba ii, Center for
Constitutional Rights, July 2006 (quoting Unclassified Attorney Notes of
Robert Kirsch), available at
http://www.ccr-ny.org/v2/reports/docs/Torture_Report_Final_version.pdf.
[94] Boumediene, 128 S. Ct. at 2229.
[95] See Press
Release, U.S. District Court for the District of Columbia, DC Chief Judge Meets
with Judges to Discuss District Court Procedures for Guantanamo Cases, July 2,
2008 available at
(http://www.dcd.uscourts.gov/public-docs/system/files/Guantanamo-PressRelease070208.pdf)
(quoting Chief Judge Royce Lamberth as stating, “"The judges of this Court
are committed to deciding theses [sic] cases as expeditiously as possible”). A flurry of case activity suggests that
the district court is expediting these cases.
[96] The Supreme Court did provide the lower courts with
some significant guidance that should make post-Boumediene litigation more fruitful than the post-Rasul litigation was. Specifically, the Court found that the
government procedure created in the aftermath of Rasul, known as the Combatant Status Review Tribunal (“CSRT”) and
purportedly designed to confirm the “enemy combatant” status of each prisoner,
was an inadequate substitute for federal habeas review. The Court found the procedure
inadequate even though the DTA authorized a limited review of its conclusions
by the D.C. Court of Appeals. Boumediene,
128 S. Ct. at 2262-74. Thus,
the Court has now ruled on two issues that dominated the post-Rasul litigation: the availability of habeas after passage of
the DTA and the MCA, and the adequacy of the CSRT proceedings. With this doctrinal underbrush cleared,
the path to full habeas proceedings should be clearer, and yet I remain concerned
about the ability of the Executive to forestall hearings because of myriad
other legal issues to be litigated, not least of which is the question of what
substantive rights the prisoners possess.
[97] Franz Kafka, The
Trial (Edwin Muir & Willa Muir trans.,
Schocken 1968) (1925).
[98] Brian Pinaire, The
Essential Kafka: Definition, Distention and Dilution in Legal Rhetoric, 46 U. Louisville L. Rev. 113, 154-55
(2007). The Kafkaesque quality of
Guantánamo is similarly captured in Steven
T. Wax, Kafka Comes to America (2008). For an insightful discussion of the tactics used by the
government to disrupt lawyers’ relationships with their clients at Guantánamo,
and the ethical challenges of representing prisoners there, see David J. Luban,
Lawfare and Legal Ethics in Guantánamo, 60
Stan. L. Rev. 1981 (2008). For a
more personal account of such challenges, see Marc Falcoff, This Is To Whom It may Concern: A Guantánamo
Narrative, 1 DePaul J. Soc. Just. 153
(2008).
[99] See Brief
for Petitioners at 36 n. 62, Al Odah v. United States, 542 U.S. 466 (2004)
(03-343) (noting applicability of the Endangered Species Act, 16 U.S.C. § 1538,
to Cuban iguanas at Guantánamo); Transcript of Oral Argument at 52, Rasul v.
Bush, 542 U.S. 466 (2004) (03-334) (Justice Souter noting, “We even protect the
Cuban iguana”).
[100] See Qassim
v. Bush, 382 F. Supp. 2d. 126, 127 (D.D.C. 2005).
[101] See Clive
Stafford-Smith, America’s Black Hole, L.A. Times, Oct. 5, 2007.
[102] Jean-Paul
Sartre, No Exit, and Three Other Plays
(Lionel Abel trans., Vintage Books
1955).
[103] Lewis Carroll,
Alice in Wonderland & Through the Looking Glass (1946).
[104] See Neil A.
Lewis, Fresh Details Emerge on Harsh
Methods at Guantanamo, N.Y. Times, Jan.
1, 2005, at A11 (“Military
officials have gone to great lengths to portray Guantanamo
as a largely humane facility for several hundred prisoners, where the harshest
sanctioned punishments consisted of isolation or taking away items like
blankets, toothpaste, dessert, or reading material. Maj. Gen. Geoffrey D.
Miller, who was the commander of the Guantanamo operation from November 2002 to
March 2004, regularly told visiting members of Congress and journalists that
the approach was designed to build trust between the detainee and his
questioner.”).
[105] Id.
[106] See generally
U.S. Dep’t of State, Equatorial Guinea, Country Reports on Human Rights
Practices (Mar. 6, 2006), available at
http://www.state.gov/g/drl/rls/hrrpt/2005/61567.htm
(documenting the “questionable” use in military trials of evidence obtained
through torture); U.S. Dep’t of State, Peru, Human Rights Practices (Feb.
1995), available at
http://www.freelori.org/gov/statedept/94_perureport.html (“Proceedings in
military courts do not meet internationally accepted standards for due process.
Military trials are closed to the public and carried out in secrecy.”).
[107] Presidential Military Order, supra note 56. For a
comprehensive history and critique of the military commission system, see David
Glazier, A Self-Inflicted Wound: A
Half-Dozen Years of Turmoil Over the Guantánamo Military Commissions, 12 Lewis & Clark L. Rev. 131 (2008); Detlev
F. Vagts, Military Commissions: A Concise
History, 101 Am. J. Int’l L. 35
(2007); Glenn M. Sulmasy, The
Legal Landscape After Hamdan: The
Creation of Homeland Security Courts, 13
New Eng. J. Int’l. & Comp. L. 1 (2006); see also David Glazier, Kangaroo
Court or Competent Tribunal? Judging the 21st Century Military
Commission, 89 Va. L. Rev. 2005
(2003); Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Commissions, 111 Yale L. J. 1259 (2001).
[108] See Neil A.
Lewis, U.S. Charges Two at Guantanamo
With Conspiracy, N.Y. Times,
Feb. 25, 2004, at A1 (reporting that Ali Hamza Ahmed Sulayman al-Bahlul and
Ibrahim Ahmed Mahmoud al-Qosi were the first two detainees at Guantanamo Bay
charged by the Pentagon); U.S. Dep’t of Defense, News Release No. 122-04, Two Guantanamo Detainees Charged, Feb.
24, 2004, available at
http://www.defenselink.mil/releases/release.aspx?
releaseid=7088.
[109] See, e.g., Nat’l
Ass’n of Crim. Def. Lawyers,
Ethics Advisory Comm., Opinion 03-04 (2003); Nat’l Inst. of Mil. Just.,
Statement on Civilian Attorney Participation as Defense Counsel in Military
Commissions (2003); Neil A. Lewis, Lawyer
Says Detainees Face Unfair System, N.Y. Times, Jan. 22, 2004, at A25; Amnesty Int’l, Memorandum To The US Government
on the Rights of People in US Custody in Afghanistan and Guantanamo Bay (2002),
http://www.amnesty.org/en/library/asset/AMR51/053/2002/en/vQnb9FC2bukJ; Eugene
R. Fidell, Dwight H. Sullivan & Detlev F. Vagts, Military Commission Law, 2005
Military Law. 47 (“[T]he commission system’s rules are subject to
continuous change and, in fact, have been revised in sometimes
internally-inconsistent ways”); David
Glazier, 24 B.U. J. Int’l L.
55, 58 (2006) (“[T]hough President Bush
mandated that the Guantanamo tribunals provide a ‘full and fair trial,’ observers documented that commissioners essentially
made up procedures as the trials proceeded, and
that even the presiding officers seemed unable to articulate the legal regimes
governing their courts.”) (internal citations omitted).
[110] The Military Commissions Act creates a third version
of the military commissions. The
first version was radically altered by a comprehensive rules change in March
2004. That next version was
invalidated by the Supreme Court in Hamdan,
after which the MCA was enacted.
[111] See infra
note 216 and accompanying text.
[112] As a plurality of the Court explained in Hamdan:
The accused and his civilian counsel may be
excluded from, and precluded from ever learning what evidence was presented
during, any part of the proceeding that either the Appointing Authority or the
presiding officer decides to “close.” Grounds for such closure “include the
protection of information classified or classifiable . . . ; information protected
by law or rule from unauthorized disclosure; the physical safety of
participants in Commission proceedings, including prospective witnesses;
intelligence and law enforcement sources, methods, or activities; and other
national security interests.” .... Appointed military defense
counsel must be privy to these closed sessions, but may, at the presiding
officer’s discretion, be forbidden to reveal to his or her client what took
place therein.
Hamdan, 126 S. Ct. at 2786 (plurality opinion) (quoting from
and citing to Military Commission Order No. 1 § 6(B)(3)) (March 21, 2002), available at
http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf) [hereinafter “MCO No.
1”]). But see id. at 2809 (Kennedy, J., concurring)
(arguing that MCO No. 1 § 6(D)(5)(b) does not permit admission of secret
evidence if such admission would deprive defendant of a “full and fair trial); Id. at 2848 (Thomas, J., dissenting)
(same).
[113] Mary M. Cheh, Should
Lawyers Participate in Rigged Systems?
The Case of the Military Commissions, 1 J. Nat’l. Security L. 375, 378 (2005). As Cheh notes, however, id. at n. 17, there were those who
believed the commissions to meet fundamental standards of justice. Notably, Judge James Robertson, the
district court judge in Hamdan who
ruled that Salim Hamdan could not be tried by military commission because his
prisoner of war status had not been determined by a “competent tribunal,”
noted, “In most
respects, the procedures established for the Military Commission at Guantánamo
under the President's order define a trial forum that looks appropriate and
even reassuring when seen through the lens of American jurisprudence.” Hamdan
v. Rumsfeld, 344 F. Supp. 2d 152, 166 (D.D.C. 2004), rev'd, 415 F.3d 33 (D.C. Cir. 2005), rev’d, 126 S. Ct. 2749 (2006).
[114] The American Bar Association was among the first
organizations to raise concerns about the use of military commissions
system. See ABA Task Force on
Terrorism and the Law, Report and Recommendations on Military Commissions (Jan.
4, 2002); ABA Task Force on Treatment of
Enemy Combatants, Report to the House of Delegates 2 (2003) (noting that
the military commission rules “as now drafted, do not sufficiently guarantee
that CDC [civilian defense counsel] will be able to render zealous, competent,
and effective assistance of counsel to detainees”); Letter from William H.
Neukom, President, American Bar Association, to the President of the United
States (Feb. 27, 2008), available at
http://www.abanet.org/poladv/letters/antiterror/2008feb27_detainees_l.pdf. The National Association of
Criminal Defense Lawyers and the Association of the Bar of the City of New York
have also been important critics. See Nat’l Assoc. Crim. Def.
Lawyers, Ethics Advisory Cmte., Opinion 03-04 (2003); Letter from Barry
M. Kamins, President, Association of the Bar of the City of New York, to
Senator Leahy et al. (March 12,
2008), available at
http://www.nycbar.org/pdf/report/Guantanamo_MC311.pdf.
[115] Perhaps most notable among the international criticism
was that from the United Kingdom, whose attorney general, Lord Peter Goldsmith,
objected publicly in 2004 to the use of military commissions for British
citizens then detained at Guantánamo, stating:
While we must be flexible and be prepared to
countenance some limitation of fundamental rights if properly justified and
proportionate, there are certain principles on which there can be no
compromise. Fair trial is one of
those—which is the reason we in the UK have been unable to accept that the
US military tribunals proposed for those detained at Guantanamo Bay offer
sufficient guarantees of a fair trial in accordance with international
standards.
UK Alarm over Guantanamo Trials, BBC News (June 25, 2004),
http://news.bbc.co.uk/2/hi/uk_news/politics/3837823.stm. See
also Johan Steyn, Guantanamo Bay: The legal black hole, 27th F.A. Mann
Lecture (November 25, 2003), available at
http://www.statewatch.org/news/2003/nov/guantanamo.pdf (Lord Steyn is a
judicial member of the British House of Lords).
[116] See infra
note 134 and accompanying text.
[117] Recently, the government proposed spending up to $125
million to build new commission facilities at Guantánamo. See
http://www.fbo.gov/spg/DON/NAVFAC/N62470CON/N62470-07-R-2500/SynopsisP.html. The proposal was subsequently shelved
after it became public and faced criticism from the newly elected Congress.
[118] See Email of
John Altenburg, Jr. to Keith Hodges, Jan. 5, 2006 (on file with author)
(“Presiding Officers will wear black judicial robes like those worn by Military
Judges at Army and Air Force courts-martial and by civilian judges throughout
the United States”).
[119] See Neil A.
Lewis, Pentagon Charges 5 More in
Guantanamo Bay Camp, N.Y. Times,
Nov. 8, 2005, at A22.
[120] See Email of
Keith Hodges, “Initial Session Trial ‘Script’” With Presiding Officer (and no
other members), Jan. 3, 2006 (copy on file with author).
[121] Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the
Practice of Law, 11 N.Y.U. Rev. L.
& Soc. Change 369, 367 (1982-83).
[122] Id. at 372.
[123] See Ex Parte Quirin, 317 U.S. 1 (1942).
[124] Presidential Military Order, supra note 56, § 4(c)(2).
[125] Carol Rosenberg, Pre-Trial
Hearings for Detainees Elicit Criticisms, Defense, Miami Herald, Jan. 16, 2006, at International News (quoting
military defense attorney, Army Maj. Tom Fleener, “If
I hear ‘full and fair trial’ one more time, it’s going to make me sick”).
[126]
Draft Transcript of Proceedings at 447, United States v. Omar Ahmed Khadr, No.
05008, (April 5, 2006) (on file with author). Later in the same proceeding, the presiding
officer elaborated: “I think that we will look to international law, I think
that we will look through military law, I think that we will look through
federal criminal law, I think that we will look at a lot of sources to—to
flesh out the procedural rules that govern this proceeding. The purpose or the
obligation of counsel is that as they see issues and they need it resolved,
they file motions, they brief motions, they cite what they think is appropriate
authority, and then I decide it. If counsel have a question as to
the—what law is applicable, then—then it’s their obligation to file
a motion.” Id. at 448.
[127] United States v. Khadr, Presiding Officer Ruling on
Defense Motion for the Production of Mr. Altenburg, June 7, 2006 (copy on file
with author).
[128] United States v. Khadr, Defense Renewed Motion to
Compel Production of Mr. Altenburg, June 21, 2006 (copy on file with author).
[129] United States v. Khadr, Presiding Officer Ruling on
Defense Motion to Renew Their Motion for the Production of Mr. Altenberg [sic],
June 22, 2006 (copy on file with author).
[130] “The decorum and dignity to be observed by all at the
proceedings of these Military Commissions will be the same as that observed in
military and Federal courts of the United States.” U.S. Dep’t of Defense, Presiding Officers Memorandum #16,
Rules of Commission Trial Practice Concerning Decorum of Commission Personnel,
Parties and Witnesses, Feb. 16, 2006 (“POM 16”), available at http://www.defenselink.mil/news/Feb2006/d20060217
POM16.pdf. POM 16 specifically mandates that “[a]ll communications, whether written or oral, should
be couched in civil, non-sarcastic language,
focusing on the factual or legal disputes.” Id.
Rule 6(a) (emphasis added).
[131] United States v. Khadr, Defense Renewed Motion to Compel
Production of Witness (Mr. John D. Altenburg, Jr.) (Revised), June 26, 2006.
[132] See MCA supra note 84, § 3.
[133] See Hamdan,
548 U.S. at 590-95.
[134] See Josh
White, From Chief Prosecutor to Critic at
Guantanamo, Wash. Post, April
29, 2008 at A1 (relating comments by Davis that Pentagon officials pressured
him to bring cases that could have “strategic political value” in an election
year). Colonel Davis took the
unusual step of testifying about his claims of political interference in the
military commission proceedings for Salim Hamdan. Id. Davis is not the only military
critic. Army Brigadier General
Gregory Zanetti, the deputy commander of the military task force running the
detention operation at Guantánamo, has stated, “The strategy seemed to be spray
and pray, let’s go, speed, speed, speed .... Charge ‘em, charge ‘em, charge ‘em
and let’s pray that we can pull this off.” Jane Sutton, Guantanamo
trials put generals at odds, Reuters,
Aug. 13, 2008, available at
http://news.yahoo.com/s/nm/20080813/ts_nm/guantanamo_hearings_dc. Zanetti went on to describe Brigadier
General Thomas Hartmann, the legal advisor to the military commissions
convening authority, as “abusive, bullying and unprofessional.” Id. Hartmann has insisted that he “viewed
it as his mission to get the trials moving in a fair and transparent
manner. He acknowledged telling
prosecutors he wanted cases that would ‘capture the public’s
imagination.’” Id.
[135] See William
Glaberson, Bin Laden’s Former Driver Is
Convicted in Split Verdict, N.Y. Times,
Aug. 6, 2008, at A1.
[136] See William
Glaberson, Panel Sentences Bin Laden
Driver to a Short Term, N.Y. Times, Aug.
7, 2008, at A1. A New York Times editorial lambasted the
government for pursuing its case against such a low-level figure as Hamdan, and
for affording so substandard a trial, concluding: “Mr. Bush’s supporters have been crowing over the
Hamdan
verdict as if it were some kind of a triumph. In truth, it is a hollow victory
in the war on terror, a blow to America's standards of justice and image in the
world.” The United States v. the Driver, N.Y.
Times, Aug. 10, 2008, at WK9.
[137] See
Presidential Military Order, supra
note 56, § 1(f) (“Given the danger to the safety of the United States and the
nature of international terrorism, and to the extent provided by and under this
order, I find consistent with section 836 of title 10, United States Code, that
it is not practicable to apply in military commissions under this order the
principles of law and the rules of evidence generally recognized in the trial
of criminal cases in the United States district courts”).
[138] See Carl Schmitt, Political Theology: Four Chapters
on the Theory of Sovereignty (George Schwab trans., MIT Press 1985)
(1934).
[139] Id.
[140] Giorgio Agamben,
State of Exception (Kevin Attell trans., 2005).
[141] See, e.g., Sanford
Levinson, Constitutional Norms in a State
of Permanent Emergency, 40 Georgia L.
Rev. 699 (2006).
[142] See Stephen
Humphreys, Legalizing Lawlessness: On
Giorgio Agamben’s State of Exception, 17
European J. Int’l L. 677, 678 (2006) (discussing two schools of thought
regarding the state of exception as identified by Agamben).
[143] Austin Sarat and Nasser Hussain provide an insightful
analysis of how a constitutive lawlessness of law can benefit a criminal
defendant. See Austin Sarat &
Nasser Hussain, On Lawful Lawlessness:
George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 Stan. L. Rev. 1307 (2003-04). They describe executive clemency as
“lawful lawlessness,” and ask, “How does a system of rules understand and
accommodate the exercise of power that is by its very nature unbound by
rules?”. Id. at 1314.
[144] Mark Tushnet, Meditations
on Carl Schmitt, 40 Georgia L. Rev.
877, 886 (2006); see also Levinson,
supra note 141, at 736 (“I
increasingly believe . . . that the discussion of emergency powers is
ultimately a profoundly political one, with law, at least as traditionally
conceived, having relatively little to do with the resolution of any truly live
controversy”).
[145] Id.
[146] Id.
[147] Id.
[148] Neuman, supra
note 65, at 1233.
[149] Id.
[150] See generally Peter Fitzpatrick & Alan Hunt Eds.,
Critical Legal Studies (1987) .
[151] Our military co-counsel, Colonel Vokey, questioned the
use of the term “Commission Law” by the presiding officer, with only comic
effect:
DC
[Defense Counsel]: By
“Commission Law,” sir, are you referring to the Military Commission Orders,
the?
Presiding Officer:
Regulations, the Military Commission’s Instructions, the Presidential
Military Order, the POMs [Presiding Officer Memoranda], and anything else that
applies. We use Commission Law as a shorthand for trying to encapsulate all
that.
DC: All right, sir, but the term, “Commission Law,” is not really
law, is it?
Presiding Officer: Do you have a question, Colonel Vokey?
DC: Well the term, “Commission's Law,” was that developed by yourself,
or as a Presiding Officer?
Presiding Officer: That's developed as a shorthand. I don't
know where it came from originally. I believe it does appear somewhere in
either the POMs or MCIs [Military Commission Instructions] or somewhere, but I
am not sure.
DC: All right, sir----
Presiding Officer: But again, Colonel Vokey, it is a
shorthand, it is not intended as a term of art or anything else. It is intended
as a shorthand to capture the things that apply to this Commission.
DC: All right, sir. So for shorthand, we can use Military
Commission's Regulations the same way?
Presiding
Officer: I am not sure what you mean?
DC:
Instead of calling it law, because you
have to agree it is not law, right, sir?
Presiding Officer: No, I don't agree it is not law. If you want to call it, “regulations,”
then you call it regulations. I am going to refer to it as “Commission Law,”
and I would hope that you would be able to follow me. Let's move on, please.
Draft Transcript of Proceedings at 437-39, United States v. Omar Ahmed
Khadr, No. 05008, (April 5, 2006) (on file with author).
[152] Cover, Folktales
of Justice, supra note 88, at
174-75.
[153] See Marie
Brenner, Taking on Guantanamo, Vanity Fair, Mar. 2007, at 328 (quoting Judge Advocate General (JAG)
defense attorney, Air Force Colonel Will Gunn as stating: “It was made clear to
me that our access to [Guantánamo Bay] was contingent on our getting a guilty
plea from [Salim] Hamdan”); Nat Hentoff, Eroding
Detainees Rights; Administration Shows Disregard for Prisoners’ Attorneys, Wash. Times, Oct. 30, 2006, at A19 (“Lt.
Cmdr. Swift said he had been commanded by Pentagon superiors to negotiate a
guilty plea by Hamdan in 2003”); see also
Neil A. Lewis, Military’s Lawyers for
Detainees put Tribunals on Trial, N.Y.
Times, May 4, 2004, at A1 (quoting military defense lawyers describing
the tribunals as “fundamentally flawed” and “inherently unfair and rigged”).
[154] Email of Captain John Carr to Colonel Fred Borch,
March 15, 2004 (copy on file with author).
[155] Id.
[156] See White, supra note 134 (reporting testimony
from Colonel Morris Davis quoting Department of Defense general counsel William
Haynes II as saying, “’We can't have acquittals .... We’ve been holding these
guys for years. How can we explain acquittals? We have to have convictions.’”).
[157] See, e.g., David
G. Savage, Response to Terror; Special
Military Court; Bush Order for Military Tribunals
Gets Several Thumbs Down; Law: Experts say plan for terror suspects goes
against international law and American standards, L.A. Times, Nov.
15, 2001, at A1; William R. Slomanson, Should We Try Bin Laden in Court?, San
Diego Union-Tribune, Nov. 7, 2001, at B9.
[158] Peter Jan Honigsberg, Chasing “Enemy Combatants,” and Circumventing International Law: A
License for Sanctioned Abuse, 12 UCLA
J. Int’l. L. & Foreign Aff. 1, 46-70 (2007) (tracing the usage
“enemy combatant”).
[159] See generally
Knut Ipsen, Combatants and Non-Combatants,
in The
Handbook of Humanitarian Law in Armed Conflicts 65-68 (Deiter Fleck ed.,
1995); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1, 3-24
(Cambridge 2005). International
Humanitarian Law (IHL) is based on a fundamental principle of distinction: all
parties to an armed conflict must distinguish between combatants and civilians. By definition, a combatant’s status as
a member of the armed forces of a party to an armed conflict vests the
individual with a right to directly engage in hostilities provided those acts
comport with other IHL provisions governing lawful targets and methods of
attack. Thus, in addition to
enjoying POW status, a legal presumption exists conferring immunity on lawful
combatants for acts committed during periods of armed conflict, in effect,
barring prosecution of such combatants for the “mere fact of fighting.” Ipsen, supra at 68. In
contrast, a civilian’s presumed status as a non-combatant confers on him
immunity from attack. But where a
civilian directly participates in hostilities, he generally forfeits this
immunity and will be treated as an unlawful combatant. Because unlawful combatants lack the protective
shield of POW status, if captured, an unlawful combatant can be subject to
domestic prosecution under a state’s criminal law.
[160] See Hamdi v.
Rumsfeld, 542 U.S. 507, 518 (2004) (noting that the capture and detention of
combatants—whether lawful or unlawful—to prevent their return to
the battlefield is recognized by “universal agreement and practice” as
“important incidents of war”).
[161] See, e.g., Letter from William J. Haynes
II, Gen. Counsel of the Dep’t of Def., to Carl Levin, U.S. Senator (Nov. 26,
2002), available at http://www.nimj.com/documents/dodletter.pdf (“An enemy
combatant is an individual who, under the laws and customs of war, may be
detained for the duration of an armed conflict”).
[162] Presidential Military Order, supra note 56. The presidential
military order did not itself use the term “enemy combatant,” but soon after
its promulgation, administration officials began using “enemy combatant” as a
shorthand for those subject to the order.
The order also requires that it be in the interest of the United States
that such individual be subject to the order, though this adds no substantive
requirement to the “enemy combatant” definition. Id. at § 2(a)(2).
[163] 542 U.S. 507 (2004).
[164] Id. at 516.
[165] Id.(citing
Brief for Respondents). The government’s
brief did not explicitly limit its “enemy combatant” definition to Afghanistan,
though the Court read in this limitation.
See Brief for Respondents,
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696).
[166] Hamdi, 542 U.S. at 510.
[167] Id. at 509.
[168] 542 U.S. 466 (2004).
[169] Id. at
483-484.
[170] The Hamdi
and Rasul decisions were handed down
on June 30, 2004. The CSRT
procedure was created by a Department of Defense memorandum issued on July 7,
2004 by then-Deputy Secretary of Defense Paul Wolfowitz. See
Order Establishing Combatant Status Review Tribunal, Deputy Secretary of
Defense (July 7, 2004) [hereinafter “Wolfowitz Memo”], available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf.
[171] See generally The Guantanamo Detainees’
Second Supplemental Brief Addressing the Effect of the Detainee Treatment Act
of 2005 on this Court’s Jurisdiction Over the Pending Appeals 38-40, Al Odah v.
United States, 05-5064 (D.C. Cir.) (2006 WL 679965) (documenting how CSRTs
deprived prisoners access to counsel, permitted the use of evidence obtained
through torture, and barred any meaningful opportunity by prisoners to contest
the charges brought against them);
In re Guantanamo Detainees, 355 F.Supp.2d 443, 468 (D.D.C. 2005) (“[T]he
CSRT failed to provide any detainee with sufficient
notice of the factual basis for which he is being detained and with a fair
opportunity to rebut the government's evidence supporting the determination
that he is an ‘enemy combatant.’”);
Kristine A. Huskey, Standards and
Procedures for Classifying “Enemy Combatants”: Congress, What Have You Done?,
43 Tex. Int’l L.J. 41, 46-50 (2007); Mark
Denbeaux & Joshua Denbeaux, No-Hearing Hearings: CSRT: The Modern Habeas
Corpus? (2006), available at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf
(analyzing CSRT hearings of 393 prisoners).
[172] Wolfowitz Memo, supra
note 170, at ¶ a.
[173] Arguably, the “enemy combatant” definition has been
modified again since the CSRT was created. When Congress enacted the Military Commissions Act (MCA), no
generalized definition of “enemy combatant” was provided. Instead Congress distinguished for
purposes of jurisdiction under the MCA a “lawful enemy combatant” from an
“unlawful enemy combatant,” only the latter of which could be tried under the
MCA. See Military Commissions Act of 2006, Pub. L. No. 109-366, 120
Stat. 2600 (codified at 10 U.S.C. § 948-50; 18 U.S.C. § 2441; and 28 U.S.C. §
2241(c)-(e)) (2006), at § 948d(a) (“[M]ilitary commissions under this chapter
shall have jurisdiction . . . [over] alien unlawful enemy combatant[s].”). This distinction between “lawful” or
“unlawful” complicated the existing CSRT definition. Pursuant to the Wolfowitz Memo of July 7, 2004, a CSRT was
tasked solely with determining if a prisoner was an “enemy combatant,” defined
therein as one “who was part of or supporting Taliban or al Qaeda forces, or
associated forces that are engaged in hostilities against the United States or
its coalition partners. This
includes any person who has committed a belligerent act or has directly
supported hostilities in aid of enemy armed forces.” Wolfowitz Memo, supra
note 170, at ¶ a. No determination
was made of whether a prisoner’s combatancy was “lawful” or “unlawful.”
Further complicating matters, the MCA codified two separate substantive (and arguably contradictory) definitions of “unlawful enemy combatant”: (1) “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces”; and (2) “a person who, before, on, or after the date of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal [CSRT] or another competent tribunal established under the authority of the President or the Secretary of Defense.” 10 U.S.C. § 948(a)(1). Yet because, pursuant to the Wolfowitz Memo, a CSRT lacked the authority to distinguish between a “lawful enemy combatant” and an “unlawful enemy combatant,” the second definition offered by the MCA is facially invalid.