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The
Guantánamo "Black Hole": The Law of War and the Sovereign
Exception
Scott Michaelsen
and Scott Cutler Shershow
(Scott
Michaelsen is associate professor of English at Michigan State
University. Scott Cutler Shershow is professor of English at the
University of California, Davis.)
January 11,
2004
Since January
2002, over 700 persons from 42 different countries have been
detained without charge or right to counsel by the United States at
Guantánamo Bay in Cuba. While many detainees were captured by the US
on battlefields in Afghanistan in late 2001, an unknown number of
others were delivered there by other means, for example, by being
sold to the US by Afghan warlords. According to Amnesty
International, at least six Guantánamo prisoners were arrested in
Bosnia-Herzegovina in January 2002. One of the cases to be taken up
by the Supreme Court involves an Australian man, Mamdouh Habib, who
claims to have traveled to Pakistan in October 2001 to look for
employment, and found himself arrested by Pakistani authorities. He
was transferred first to Egypt, then into US military hands in
Afghanistan, and finally flown to Guantánamo in May 2002. The
"unlawful combatants" being held at Guantánamo thus include persons
arrested far from any active battlefield.
In December
2003, the US military began suggesting that approximately 100 of the
remaining 660 Guantánamo detainees would be released to authorities
in various countries. It is unclear what these new releases might
mean. Are they a panicked response to the Supreme Court's acceptance
on November 10 of several cases in which Guantánamo detainees are
seeking issuance of writs of habeas corpus, or simply a sign of
favoritism to "friendly" nations? In either case, the US is
signaling that the releases are premised on promises from home
countries not to simply let the detainees go. Nor is there much word
on the fate of the remaining Guantánamo prisoners.
EXCEPTIONS
DEFINE THE RULE
Some critics
claim that US government actions with regard to the Guantánamo
detainees fall entirely outside the existing legal frameworks, in a
sort of legal "black hole." True, some Bush administration officials
have occasionally (though informally) justified Guantánamo
detentions with reference to the unprecedented nature of the
post-September 11 "war on terrorism." In all formal contexts,
however, the US government has carefully positioned its actions in
terms of existing international law. For example, in March 2002, the
Organization of American States' Inter-American Commission on Human
Rights issued a call for the US to take "urgent measures" to
determine whether the detainees were prisoners of war. Rather than
simply ignoring the OAS ruling (as it had done with past rulings),
the US gave the legalistic reply that "Under Article 4 of the Geneva
Convention,... Taliban detainees are not entitled to prisoner of war
status.... The Taliban have not effectively distinguished themselves
from the civilian population of Afghanistan.... Al-Qaeda is an
international terrorist group and cannot be considered a state party
to the Geneva Convention." According to the US, all Taliban and
al-Qaeda members rounded up worldwide are, by default, "unlawful
combatants" rather than prisoners of war.
Other critics,
by contrast, charge that the US is in simple violation of
international law, in particular the Third Geneva Convention, which
was adopted in 1949. The problem with this viewpoint is that
international law itself is a product of what Noam Chomsky calls the
"state system" and was created to solidify a dominant position for
powerful state actors in matters of war. All law, either implicitly
or explicitly, carries with it recourse to exceptional situations;
and the exceptions to international humanitarian law are persons who
do not easily fit into traditional strong-state categories. As
Michael Walzer showed in his oft-cited Just and Unjust Wars (1977),
these include guerrilla fighters in struggles for liberation, their
civilian supporters and, as a final grab-bag category, all
"terrorists." Exceptions to the rule have in fact defined the rule
of the laws of war, as can be demonstrated through close examination
of the Geneva Conventions and the first formal codification of the
law of war, the so-called Lieber Code produced during the American
Civil War. Recourse to international law will never be sufficient to
restrain states from actions such as those taken under the name
Guantánamo.
WHOSE DOUBT
COUNTS?
The crucial
clause of the Third Geneva Convention that the US might have
violated is Article 5: "Should any doubt arise as to whether
persons, having committed a belligerent act and having fallen into
the hands of the enemy, belong to any of the categories enumerated
in Article 4, such persons shall enjoy the protections of the
present Convention until such time as their status has been
determined by a competent tribunal." But whose doubt counts here?
The US position, expressed in documents submitted to the OAS and by
Pierre-Richard Prosper, the US ambassador-at-large for war crimes
issues, is that "doubt" refers primarily or even overwhelmingly to
the "detaining power." The US, Prosper continues, has no such
doubts. Amnesty International, along with the International
Commission on Jurists and the Crimes of War Project, has argued, by
contrast, that any competent government or civil group might raise a
point of doubt. Amnesty suggests that one look to the International
Committee of the Red Cross (ICRC), "the most authoritative body on
the Geneva Conventions," for clarification of this crucial
distinction. Yet Frits Kalshoven's Constraints on the Waging of War
(1987), the primary ICRC document on these matters, suggests that
the question of who is charged with raising doubt under Article 5 is
"not always readily answered," and his examples exclusively concern
detaining powers (the US and Israel) questioning their own
classifications. Beyond this, according to the ICRC, even under the
most "liberal" construction of the Third Convention, there remain
"quite a few obstacles in the way of recognition of resistance or
guerrilla fighters as prisoners of war."
The prominent
critical theorist Judith Butler's analysis of these matters,
published as "Guantánamo Limbo" by The Nation in April 2002,
addresses similar ambiguities, yet is unable to resolve them. On the
one hand, Butler asserts that the US is in "flagrant violation" of
the Geneva Conventions. On the other hand, she suggests that the
Geneva Conventions "are of only limited help here," since they are
"pervasively biased toward the nation-state," and regard terrorists
as always "outside the protocols" and even "outside the law"
entirely. Thus, according to Butler, the US has flagrantly violated
international law, but the violations cannot be proven using the
actual documents of international law. Butler's text vacillates
between two poles of thought, arguing, in turn, that the Guantánamo
Bay detainees are inside the law or outside the law; that the US is
an international scofflaw or not. This tactic avoids consideration
of both sides of the problem simultaneously, something which some
other contemporary theorists, such as Giorgio Agamben, have tried to
do by interrogating the nature of sovereignty itself. As Agamben
suggests in Homo Sacer (1998), sovereignty is precisely the way in
which "something is included solely through its exclusion": "the
juridico-political order has the structure of an inclusion of what
is simultaneously pushed outside."
Butler fails to
recognize that the Guantánamo prisoners are both outside and inside
the normative rule of law. She makes two recommendations: to read
the Geneva Conventions more openly, and to produce a new
international document which would clearly grant the Guantánamo
prisoners prisoner of war status. Such practical prescriptions,
however, ignore what she elsewhere acknowledges: that all US actions
in this case are grounded in the assumption that, as Speaker of the
House Dennis Hastert puts it, "there are exceptions to the
universal, and we are dealing with the exception here." Butler seems
to think such exceptionality is no more than a right-wing ploy to
circumvent international agreements; in its stead, she seeks the
universalization of certain rights without exception. But as legal
theorist Carl Schmitt argued long ago, sovereignty is precisely the
power to determine the exception to the rule. The Guantánamo
prisoners, as exceptions to the humanitarian laws of war, are in
fact foundational for those laws.
THE LIEBER
CODE
The
humanitarian laws of war were first codified by legal philosopher
Francis Lieber at a time long before the Geneva Conventions, at the
behest of President Abraham Lincoln. The "Lieber Code," which
directly influenced both the Hague deliberations at the turn of the
century, and the Geneva Conventions in the mid-twentieth century,
was put into effect on April 24, 1863 by Lincoln's secretary of war,
Edwin Stanton. As Paragraph 155 of the Code clearly indicates, there
are only two classes of persons in warfare: "All enemies in a
regular war are divided into two general classes -- that is to say,
into combatants and non-combatants, or unarmed citizens of the
hostile government." Intriguingly, before the Code's existence in
1862, the general-in-chief of the US Army, Major General Henry
Halleck, had already corresponded with Lieber regarding the
exceptional problem of "guerrilla war." Lieber's 22-page reply was
published before the Code itself became public and went into effect.
In other words, in the history of the codification of the laws of
war, the exception to the normative rules came first, providing the
strange ground for the norm itself.
Lieber's letter
on the guerrilla operates via a kind of double logic of the
exception. Lieber is primarily concerned to distinguish between
legal combatants entitled "to the full benefits of the laws of war"
and "guerrillas" who are not. But as Lieber defines the term, the
guerrilla is constituted by a variety of "kindred subjects," among
them figures variously named the "freebooter," the "brigand," the
"partisan" and so on. "Partisans," for example, are soldiers
"detached from the main army" who resemble, and yet must be
distinguished from, a "free corps" made up of "volunteers, generally
raised by individuals authorized to do so by the government." Even
though the members of this last sub-category are often "high-minded
patriots," they are still to be rejected as unlawful combatants and
treated "on the principle of retaliation." (This "retaliation," as
Lieber makes clear in his formal code, refers to indiscriminate
violence that can even include the killing of prisoners of war. "The
law of war can no more wholly dispense with retaliation than can the
law of nations," he insists.) By the same token, the category of
lawful combatant cannot simply be limited to the regular uniformed
soldiers of an organized army. Lieber also suggests, for example,
that "the rising of the people to repel invasion entitles them to
the full benefits of the law of war" and that a conquering power is
"obliged to treat the captured citizens in arms as prisoners of
war."
At one and the
same time, Lieber charts a variety of fine distinctions between
otherwise similar practices, as he also draws a fundamental line
beyond which all distinctions dissolve, and where all combatants,
regardless of their specific motivations, are to be treated as
"common robbers" and subject, if necessary, to indiscriminate
violence. The law and practice of war thus remains inextricably
linked to the limitless barbarism that it always seeks to transcend.
This double
logic is deeply interwoven into the history of sovereignty and even
the development of American constitutional democracy. Consider
Lieber's description of one sub-category of illegal combatant:
"Freebooter is a term which was in common use in the English
language at no very remote period; it is of rare use now, because
the freebooter makes his appearance but rarely in modern times,
thanks to the more regular and efficient governments and to the more
advanced state of the law of war. From the freebooter at sea arose
the privateer, for the privateer is a commissioned freebooter, or
the freebooter taken into the service of the government by the
letter of marque.... Wherever the freebooter is taken, at sea or on
land, death is inflicted upon him now as in former times, for
freebooters are nothing less than armed robbers of the most
dangerous and criminal type."
The privateer,
a kind of state-sanctioned pirate, highlights the elusive but
implacable distinction between legal and illegal combatant. The
bonafide pirate -- the genuinely "private" privateer -- has
typically been described with the same rhetoric of exceptionality
today applied to the terrorist, as someone who, in the words of Sir
William Blackstone, "is an offence against the universal law of
society," and who "has reduced himself afresh to the savage state of
nature." It is striking to note how Article I, section 8 of the
Constitution, in two sequential clauses of unmistakable symmetry,
gives to Congress the power "to define and punish piracies and
felonies committed on the high seas, and offenses against the law of
nations," and also, "to declare war, grant letters of marque and
reprisal, and make rules concerning captures on land and water." The
archaic term "letter of marque," as Lieber's text also indicates,
refers to the practice of authorizing a naval privateer to attack
the enemies of a state and thus (according to the Oxford English
Dictionary) "to commit acts which would otherwise have constituted
piracy." In effect, state sovereignty literally consists at once of
the power to punish and to commit piracy. Terrorism also
presents the sovereign state with an image of its own essential
violence, which in turn calls forth the violent exceptionality of
the state's response.
Such a
conclusion is no mere theoretical sophistry or legal technicality,
as seen in the public discourse surrounding the "war on terrorism."
Speaking on NPR, the famous law professor Alan Dershowitz defended
the arrest of two female relatives of Izzat Ibrahim al-Duri, the
former top adviser to Saddam Hussein accused of involvement in
recent attacks on US forces in Iraq. "It's never permissible under
international law or under American domestic law to hold an innocent
person in order to put pressure on a relative or a guilty person,"
Dershowitz began by conceding, "but the United States is
experimenting with what might generously be called creative
approaches to the problem of terrorist prevention." Such "creative"
approaches are justified, he goes on to suggest, "because
international law wasn't written for terrorism." Dershowitz is quite
wrong on this point as a matter of historical fact, as the above
analysis of the Lieber Code shows. Yet his frank embrace of this
particular transgression of international law is wholly in keeping
with the underlying assumptions of that system. Perhaps even more
strikingly, New York Times columnist David Brooks excused "the
brutal measures our own troops will have to adopt" in fighting the
war in Iraq. Because the US military is fighting people who "survive
only by cruelty," he claimed, it will have to respond with what he
frankly calls "atrocities."
SOVEREIGNTY
AGAINST ITSELF
The act of
sovereignty that captures the Guantánamo detainees only to push them
beyond the reach and protection of the sovereign state is the very
manifestation of the existing state system and its corollary values.
Critics are confronted with a Hobson's choice between attempting to
limit or suspend the exercise of sovereignty through increasing
legal regulation or endorsing the exercise of sovereignty as a
necessary corrective to injustice (as in the king's or executive's
pardon). On this point, progressive legal theorists have been split.
But the ultimate answer cannot lie solely in the enforcement of
existing international law and the production of yet more
international documents within the same framework, nor in the
tenuous hope for occasional exceptions to that sovereign
exceptionality that is always the essential form of sovereign power.
International law alone will never avail, and not merely because its
own logic always holds in reserve a right to the same indiscriminate
violence that it condemns in the guerrilla, the pirate or the
terrorist. Sovereignty is the principle and activity that founds the
state, and therefore constitutes its innermost and outermost
possibility. The sovereign black hole, loophole or zone of legal
limbo is foundational for the existing juridico-political order.
Even more broadly, within that order, the absolute end of
sovereignty is unthinkable. Without sovereignty, no decisions; and
without decisions, no justice.
Since
sovereignty itself is inevitable, yet particular instances of
sovereign power must still be confronted and challenged, critics of
the current situation must assume a double responsibility. On the
one hand, the present resources of national and international law
must indeed be pursued to their limits, to discover and interpret
precedents for the urgent decisions of the day, and, more
importantly, to set new precedents for decisions still to come. But
on the other hand, since law itself cannot in principle ever be
adequate to the full enormity of Guantánamo, sovereignty itself must
be torqued in a strange reversal, and made to work against itself.
In other words, the sovereignty of strong states with the power to
decide global matters -- the sovereignty that is, after all, finally
a collective force, a power "of the people, by the people and for
the people" -- must be expended without reserve in the name, not of
law, but of justice, to the point where the territory and its
boundary trembles. Such is not a mechanism or method which might be
codified, because it will involve sovereign (and hence
unprecedented) acts and decisions; and because its goal is a justice
understood as an infinite task of thinking our relation to the
Other. But as Jacques Derrida suggests, "the fact that law is
deconstructible is not bad news"; rather, one can "find in this the
political chance to all historical progress." All this is perhaps
difficult to imagine in a world so dominated by reasons of state and
the fanaticism of borders and identities. But the urgency of the
task can hardly be overstated. At any rate, one thing is clear: at
Guantánamo Bay, as Walt Kelly once observed, "we have met the enemy
and he is us."
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