THE BLACK FLAG: GUANTNAMO BAY AND THE SPACE OF EXCEPTION THE

THE BLACK FLAG: GUANTÁNAMO BAY AND THE SPACE OF EXCEPTION

© The author 2006Journal compilation © 2006 Swedish Society for Anthropology and Geography 405

THE BLACK FLAG:GUANTÁNAMO BAY AND THE SPACE OF EXCEPTION

byDerek Gregory

Gregory, D., 2006: The black flag: Guantánamo Bay and thespace of exception. Geogr. Ann., 88 B (4): 405–427.

ABSTRACT. The American prison camp at Guantánamo Bay hasoften been described as a lawless space, and many commentatorshave drawn on the writings of Giorgio Agamben to formalize thisdescription as a ‘space of exception’. Agamben’s account of therelations between sovereign power, law and violence has much tooffer, but it fails to recognize the continued salience of the colonialarchitectures of power that have been invested in GuantánamoBay, is insufficiently attentive to the spatialities of international(rather than national) law, and is unduly pessimistic about the pol-itics of resistance. Guantánamo Bay depends on the mobilizationof two contradictory legal geographies, one that places the prisonoutside the United States ito allow the indefinite detention of itscaptives, and another that places the prison within the UnitedStates in order to permit their ‘coercive interogation’. A detailedanalysis of these interlocking spatialities – as both legal texts andpolitical practices – is crucial for any crique of the global war pris-on. The relations between law and violence are more complex andcontorted than most accounts allow, and sites like GuantánamoBay need to be seen not as paradigmatic spaces of political mo-dernity (as Agamben argues) but rather as potential spaces whoserealization is an occasion for political struggle not pessimism.

Key words: law, torture, space of exception, ‘war on terror’, warprison

Even at this hour, beads of sweat crawledacross his scalp. By the time the sun was up itwould be another day for the black flag, whichthe Army hoisted whenever the temperaturerose beyond reason. An apt symbol, Falkthought, like some rectangular hole in the skythat you might fall into, never to reappear. Anational banner for Camp Delta’s Republic ofNobody, populated by 640 prisoners from for-ty countries, none of whom had the slightestidea how long they would be here.

(Dan Fesperman,The Prisoner of Guantánamo)

Bare lifeIn the early morning of 10 June 2006 three prison-ers held at the military detention facility at the USNaval Station at Guantánamo Bay, Cuba, two fromSaudi Arabia and one from Yemen, were found

dead in their cells. Although the three men had beendetained without trial for several years and none ofthem had court cases or military commissionspending (none of them had even been charged), thecommander of the prison dismissed their suicidesas ‘not an act of desperation but an act of asymmet-ric warfare against us’. Although the three men hadbeen on repeated hunger strikes which ended whenthey were strapped into restraint chairs and force-fed by nasal tubes, the US Deputy Assistant Secre-tary of State for Public Diplomacy described theirdeaths as ‘a Public Relations move to draw atten-tion’ – to what, she did not say – and complainedthat since detainees had access to lawyers, receivedmail and had the ability to write to families, ‘it washard to see why the men had not protested abouttheir situation’. Although by presidential decreeprisoners at Guantánamo are subject to indefinitedetention and coercive interrogation while they arealive, when President George W. Bush learned ofthe three deaths he reportedly stressed the impor-tance of treating their dead bodies ‘in a humane andculturally sensitive manner’. 1

It is in the face of contradictions such as these thatmany commentators have seen Guantánamo Bay asan iconic example of that paradoxical space whichGiorgio Agamben describes as ‘the state of excep-tion’. In what follows I examine this characterizationin detail, and pay particular attention to the torturedgeographies that wind in and out of the war prison.I begin with a summary account of Agamben’s argu-ment, but while I will be critical of a number of hisformulations I intend this article primarily as a cri-tique of the Bush administration’s political theologyrather than Agamben’s political philosophy.

Agamben’s account turns on the rotations be-tween sovereign power, the state of exception andbare life. 2 It is a sophisticated thesis, drawing on aheterodox group of European thinkers – Benjamin,Foucault, Heidegger and Schmitt – and relying on aseries of argumentation sketches plucked from clas-sical, medieval and early modern law to establish themodalities of sovereign power. Its pivot is the dismal

DEREK GREGORY

© The author 2006Journal compilation © 2006 Swedish Society for Anthropology and Geography406

figure of homo sacer, a position Agamben says wasconferred by archaic Roman law upon those whocould not be sacrificed according to ritual (becausethey were outside divine law: their deaths were of novalue to the gods) but who could be killed with im-punity (because they were outside juridical law:their lives were of no value to their contemporaries).Critics have treated Agamben’s reading as partialand partisan: ‘extravagant’ according to one and ‘amyth’ according to another. 3 But his purpose is nei-ther textual nor historical. Instead, he projects thisfigure into the present, as a sort of cipher or bearerof what he calls ‘bare life’, by making two moves.

First, Agamben argues that homo sacer emergesat the point where sovereign power suspends thelaw, whose absence thus falls over a zone not mere-ly of exclusion but of abandonment. The produc-tion of such a space – the state of exception – is cen-tral to Agamben’s account of modern biopolitics.This space is produced through a speech-act, ormore accurately a decision in the sense of ‘a cut inlife’, that is at once performative and paradoxical.It is performative because it draws a boundary be-tween politically qualified life and merely existentlife exposed and abandoned to violence: ‘bare life’.‘However sacred man is,’ Benjamin wrote in hisCritique of Violence, ‘there is no sacredness in hiscondition, in his bodily life vulnerable to injury byhis fellow men’. 4 If this remark is read as bodilylife made vulnerable to injury (through a sovereigndecision) then it becomes clear that bare life is atonce ‘immediately politicized but nevertheless ex-cluded from the polis’. 5 The cut that severs bare lifefrom politically qualified life is paradoxical, how-ever, and all forms of life are thereby made precar-ious, because the boundary it enacts is mobile, os-cillating: in a word (Agamben’s word) indistinct.This is necessary not a contingent condition, more-over, and crucially affects both time and space.First, the exception implies a non-linear temporal-ity: ‘The exception does not subtract itself from therule; rather, the rule, suspending itself, gives rise tothe exception and, maintaining itself in relation tothe exception, first constitutes itself as a rule’. Sec-ond, the exception – literally that which is ‘takenoutside’ – is effected through a distinctive spatial-ity. For the exception ‘cannot be included in thewhole of which it is a member and cannot be amember of the whole in which it is always alreadyincluded’. The mapping of such a space requires atopology, Agamben concludes, because only atwisted cartography of power is capable of foldingsuch propriety into such perversity. 6

Second, Agamben argues that in the contempo-rary world the state of exception has become therule. Writing while Hitler’s armies advanced onParis, Benjamin had warned that ‘the “state ofemergency” in which we live is not the exceptionbut the rule’, and Agamben endorses and enlargesthis claim. 7 Although he notes that concentrationcamps first emerged in colonial spaces of exceptionin Cuba and South Africa, he passes over these (andthe colonial architectures of power that producedthem) to focus on Nazi concentration camps and, inparticular, Auschwitz. He treats the concentrationcamp as ‘the materialization of the state of excep-tion’, ‘the pure, absolute and impassable biopoliti-cal space’ in which juridical rule and bare life enterinto ‘a threshold of indistinction’, through which‘law constantly passes over into fact and fact intolaw, and in which the two planes become indistin-guishable’. Unlike Foucault, who identified theThird Reich as a paroxysmal space in which sov-ereign power and biopolitics coincided, however,Agamben insists that none of this is a rupture fromthe project of modernity. On the contrary, his nar-rative is teleological, and he identifies the camp as‘the hidden paradigm of the political space of mo-dernity’, and suggests that its operations have beenunfurled to such a degree that today, through themultiplication of the camp as a carceral archipela-go, the state of exception has ‘reached its maximumworldwide deployment’. By this means that sover-eign power has produced both an intensificationand a proliferation of bare life. If this seems exor-bitant, Agamben is perfectly undeterred. ‘The nor-mative aspect of law can thus be obliterated andcontradicted with impunity,’ he continues, througha constellation of sovereign power and state vio-lence that ‘nevertheless still claims to be applyingthe law’. In such a circumstance, he concludes, thecamp has become ‘the new biopolitical nomos ofthe planet’ and ‘the juridico-political system [hastransformed] itself into a killing machine’. 8

As Agamben has developed this critique it is,above all, the ‘war on terror’ that has come to be inhis sights. He argues that the locus par excellenceof this new state of exception is the US Naval Sta-tion at Guantánamo Bay, where from January 2002men and boys captured during the US invasion ofAfghanistan have been imprisoned. He draws par-allels between the legal status of prisoners in thiscamp and prisoners in Auschwitz: their situations,so he says, are formally – ‘paradigmatically’ –equivalent. Prisoners of a war on terror who are de-nied the status of prisoners of war, Agamben argued



that their legal status is erased. They are not legalsubjects but ‘legally unnameable and unclassifiablebeing[s]’, ‘the object of a pure de facto rule’ or a‘raw power’ whose modalities are ‘entirely re-moved from the law and from judicial oversight’. Inthe detainee at Guantánamo, he concludes, ‘barelife reaches its maximum indeterminacy’. 9

Law, violence and the space of exceptionAgamben often refers to the state of exception asthe space of exception, but its spatiality has re-ceived little sustained analysis. Indeed, MichaelDillon has argued that:

The topology of sovereign power is not in facta space at all. It is a dividing practice. As suchit does work. That work is not simply or evenprimarily, however, to command the domainof the inside of law and of order. Rather, it isto effect a passage between inside and outside,law and violence… 10

Dillon is I think correct – apart from his first sen-tence. Conceptions of space need not be limited tothe container model that he rejects, and I prefer totreat space as a performance, a doing, because onlyin this way do I think it possible to show how thepassages between inside and outside, law and vio-lence, are effected.11

In what follows, I trace the convolutions of ‘in-side’ and ‘outside’ through the instruments of lawand violence. Agamben argues that the space of ex-ception is typically produced through the declara-tion of a state of emergency that becomes theground through which sovereign power constitutesand extends itself. Three days after the terrorist at-tacks on the Pentagon and the World Trade Centeron 11 September 2001, President Bush declared aNational Emergency ‘by reason of [those] attacksand the continuing and immediate threat of furtherattacks on the United States’. This was followed bya further declaration on 23 September 2001 to dealwith ‘the unusual and extraordinary threat to thenational security, foreign policy and economy ofthe United States’ by ‘grave acts of terrorism andthreats of terrorism committed by foreign terror-ists’. The emergency has been renewed in each sub-sequent year, and Agamben suggests that Bush ‘isattempting to produce a situation in which theemergency becomes the rule’: in which ‘provision-al and exceptional measures’ are transformed into‘a technique of government’. In fact, however, the

cascade of national emergencies did not begin with9/11. Bush has continued no less than seven previ-ous National Emergencies and declared eight oth-ers. For the United States, it seems, and despite thelanguage used to proclaim them, national emergen-cies are not so ‘unusual and extraordinary’ after all.But what attracts Agamben’s attention, and whatdistinguishes the double emergencies declared inSeptember 2001, is their proximity to a supposedlynew kind of war (the ‘war on terror’) and the legalformularies that have been mobilized around it.12

Yet these emergencies and the war that they havebeen used to license involve a spatiality that islargely foreign to Agamben’s account. His briefhistory of the state of exception in Europe and theUnited States is shaped by the exigencies of war:the American Civil War, the Franco-Prussian War,the First World War and the Second World War. Buthis focus is on suspensions of national law duringstates of emergency declared by France, Germany,Italy, Britain and the United States. The connec-tions between sovereign power and the state of ex-ception are thus always framed by a single state,and the transnational implications receive little at-tention. 13 Yet most of the emergencies and ‘excep-tional measures’ that have punctuated Bush’s pres-idency fold the national into the transnational. Theyaddress other states – Afghanistan, Cuba, Iran, Iraq,Libya, Macedonia and Serbia, Syria, and Zimba-bwe among them – whose actions have, at one timeor another, been held to pose a threat to the nationalsecurity and foreign policy of the United States.The ‘war on terror’ has accentuated the politicaland juridical folds between the national and thetransnational, but this process was underway longbefore 9/11, and the relations between sovereignpower, law and spatiality have been complicated intwo crucial ways that bear directly on GuantánamoBay.

In the first place, the Westphalian model of sov-ereignty has been compromised as states have in-creasingly asserted prescriptive jurisdiction be-yond their borders. 14 Legal scholar Kal Raustialaargues that ‘sovereignty has become progressively“unbundled” from territoriality’. Although extra-territoriality is central to the prosecution of the ‘waron terror’, American attempts to decouple law andlocation have a much longer history and do not de-rive uniquely from the global assertion of militaryforce. Some of them have addressed transnationaleconomic activities and criminal transactions thathave effects within the United States; indeed,claims like this are made in most of the declarations

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of National Emergency. Others have extended con-stitutional protections to citizens and (in certain cir-cumstances) aliens beyond the borders of the Unit-ed States; one of the central questions posed byGuantánamo Bay concerns the reach of US federallaw and the access of prisoners to US courts to chal-lenge their detention. That this is indeed a questionbears emphasis. The Bush administration has re-suscitated the doctrine of the unitary executive, inwhich the President’s actions as commander-in-chief are supposedly beyond the law. This perversereading of the Constitution holds that the executivecan override both the judiciary and the legislature.As the profoundly conservative jurist-cum-philos-opher Carl Schmitt had it, ‘Sovereign is he who de-cides the exception’: and Bush has insisted that heis ‘the decider’. But national emergencies and thespecial powers that derive from their proclamationcannot be reduced to a decisionism; neither doesthe juridical process meekly fold its tent when ithears the martial drums of the commander-in-chief. As Amy Bartholomew argues, a successionof legal challenges in US courts has shown that‘law will not willingly abdicate its role to a state ofexception and will continue to act as an obstacle tothe arbitrary authority of the executive branch’.15

In the second place, international law also mod-ulates the actions of the United States. The compli-cated spatiality that Agamben attributes to the (na-tional) state of exception is compounded by thespatialities of international law, which by its verynature is decentred, without a unitary sovereign toground or guarantee its powers; its provisions aredistributed through a congeries of conventions,treaties and organizations. For this reason, nine-teenth-century legal philosopher John Austin de-clared that international law is not really law at all:laws could only be ‘properly so called’ if they were‘commands of a sovereign’, which made interna-tional law merely ‘law by close analogy’. 16 As Iwill show below, the Bush administration wouldclearly like to have the United States regarded asthe global sovereign, and it has repeatedly an-nounced that its prosecution of the ‘war on terror’will not be hamstrung by what it views as outmodedlegal protocols. When he was Under Secretary ofDefense for Policy, Douglas Feith declared thatnothing in the Constitution required the Presidentto seek the ‘approval’ of non-Americans before act-ing to protect the United States. This may have beenrhetorically effective but it was also thoroughly dis-ingenuous; it reduced international law to anotherdecisionism when Feith knew very well that inter-

national law imposes obligations rather than mere-ly invites approval. This presumably explains whyhe vilified ‘legal lines of attack’ as a form of ‘asym-metric warfare’ (sic) deployed to constrain Amer-ica’s ‘global freedom of action’.17 But legal con-straints on the ‘war on terror’ were not so many ex-ternal impositions and irritants; they were endorsed(and vigorously upheld) by law officers and otherswithin the State Department and even the Penta-gon. Although Bush claimed that he had the powerto suspend the Geneva Conventions in prosecutingthe war in Afghanistan, for example, he elected notto do so; instead, he asserted that they did not applyto those fighting for al-Qaeda or the Taliban. Yet thememoranda exchanged between the Departmentsof Justice and Defense and the State Departmentmake it plain that Bush’s actions were not under-taken without facing down a series of legal chal-lenges. Other provisions of international law arenon-derogable: in particular, the prohibitionagainst torture is an absolute right to which thereare no exceptions. 18 Here, too, as I will also show,the Bush administration engaged in a frenzy of le-gal argument (and legerdemain) in order to under-write the ‘coercive interrogation’ of prisoners heldat Guantánamo and other sites in the global warprison.

Several critics have described the Bush admin-istration as waging ‘a war on law’, and the Presi-dent plainly shares a Feith-based impatience withits scruples. ‘International law?’ Bush responded toa reporter in December 2003. ‘I’d better call mylawyer. I don’t know what you’re talking about byinternational law’.19 More particularly, it has be-come common to treat Guantánamo Bay as a ‘law-less place’ that is ‘beyond the reach of national andinternational law’; a place where sovereign powerhas been mobilized ‘outside the rule of law’; a wildzone subject to ‘a lawless and prerogatory power’,where ‘the law is effectively suspended in both itsnational and international forms’ and where sover-eign power is extended ‘in excess of the law’; a‘law-free zone’; and a legal ‘black hole’. Agambenhimself describes the state of exception as ‘akenomatic state’, a vacant space limned by the‘emptiness of law’. 20 This has become a common-place critique on both sides of the Atlantic, but Iwant to draw on the previous paragraphs to qualifyits rendering of the global war prison in three ways.First, I seek to expose the architectures of colonialpower which Agamben more or less ignores, be-cause the shadows that fall over the contemporaryspace of exception are not limited to those of the



Twin Towers of the World Trade Center or thechimneys of Auschwitz: the imbrications of lawand violence which shape the colonial present havea longer genealogy that needs to be recovered aspart of the process of critique. Second, and follow-ing directly from these considerations, I address theinternational dimensions of law and violence thatAgamben glosses over, not because I think thesefunction as a deus ex machina whose activation canrescue homines sacri from their fate but, on thecontrary, because international law – in its colonialpast and in our colonial present – marks a crucialsite of political struggle. Thirdly, this in its turn re-quires a careful consideration of the possibilities ofresistance that is largely absent from Agamben’saccount, because there is nothing ineluctable aboutthe production or proliferation of spaces of excep-tion. These claims run throughout the discussionthat follows, where I triangulate ‘Guantánamo’from three points. First, I plot the contours of Euro-American exceptionalism in order to mark the co-lonial, colonizing gestures through which it hasbeen both authored and authorized; Second, I rattlethe colonial chain that yokes the law to violence inGuantánamo’s past; finally, I trace the detailed le-gal and para-legal production of Guantánamo as astaging-post for the contemporary ‘war on terror’.En route, it will become clear that Bush does indeedknow what ‘international law’ is about – and that hehas repeatedly called his lawyers.

Euro-American exceptionalismIn their attempt to unravel the connections betweenwhat they call ‘our brutal global state of war’ and‘the age of Empire’, Michael Hardt and AntonioNegri begin with the politico-juridical intersectionsbetween two exceptions, one European and the oth-er American. 21 These intersections are also efface-ments, however, and to show why this is so I wantto revisit Agamben’s reading of the work of CarlSchmitt to draw out the shadows of colonial powercast by these two exceptions. Part of Schmitt’s pur-pose was to show that in Europe in the sixteenth andseventeenth centuries the theological-moral modelof the ‘just war’ sanctioned by the medieval Chris-tian Church against infidels yielded to the secular-juridical model of a regulated and rationalized warbetween formally equivalent sovereign states. Inthis economy of death warring sovereigns were re-quired to recognize each other as legal equals, andon the field of battle their subjects were obliged torecognize each other as subjects. There were thus,

at least in principle, mutually acknowledged limitsto enmity and violence, and within this space – thespace of the jus publicum Europaeum – sovereignpower operated, so Schmitt claimed, through nor-mative regulation. He argued that unlimited enmityand unrestrained violence were now bracketed andprojected ‘beyond the line’ into the non-European(and specifically the ‘New’) world. As William Ra-sch puts it, ‘Europe sublimate[d] its animality byestablishing the Americas as an extralegal zone inwhich bestial deeds [could] be “acted out” faraway’. Schmitt identified this zone of alterity – thespace supposedly vacant for the play of colonialpower – with ‘the state of nature in which every-thing is possible’ and also with the state of excep-tion which ‘bases itself in an obviously analogousfashion on the idea of delimited, free and emptyspace’ understood as a ‘temporary and spatialsphere in which every law is suspended’. For Ag-amben, however, this was no analogy. Instead, thestate of nature and the state of exception emerge as‘but two sides of a single topological process inwhich what was presupposed as external (the stateof nature) now reappears, as in a Möbius strip or aLeyden jar, in the inside (as state of exception)’. 22

This is a contentious but highly effective fiction,a celebration of a particular constellation of politi-cal and economic power, and Schmitt’s work has tobe approached with the utmost critical vigilance (inrelation to both Europe and ‘not-Europe’). 23 Hiscentral, elegiac point was that the line – a colonialmeridian – had slowly dissolved by the early twen-tieth century, and that the wild zones of colonial vi-olence had appeared within the ruins of the Euro-pean order. What had happened, and according toAgamben is still happening, is that the ‘juridicallyempty’ space of the state of exception ‘has trans-gressed its spatiotemporal boundaries and now,overflowing outside them, is starting to coincidewith the normal order, in which everything againbecomes possible’. The dissolution of the lineshould not be read as a reversion to Hobbes’ stateof nature, however, but rather as the emergence ofthe state of exception as what Agamben sees as ‘thepermanent structure of juridical-political de-local-ization and dis-location’. What was once confinedis now loose in the world. 24

Two conclusions follow from this rough outlinethat bear directly on the production of ‘Guantána-mo’. First, by implication, the space of normativeregulation was produced by European states as-serting their sovereignty over the world beyondthe line and co-producing through those assertions

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a vast colonial space of exception. But its ‘topog-raphies of cruelty’, as Achille Mbembe calls them,cannot be reduced to and hence derived from aspace of absolute lawlessness. 25 Colonial warswere raw, ruthless, feral; but the violence of colo-nialism was not confined to warfare. The law wasintimately involved in the modalities of colonialviolence, and international law bears the marks ofthose colonial predations; its locus is drawn notonly through relations of sovereign states, there-fore, but also through what Peter Fitzpatrick calls‘the colonial domination of people burdened byracial difference’. 26 This is not a peculiarity of in-ternational law, which shares in a generalized gal-lery of imaginative geographies where the other ismarked as irredeemably other, and this culturalcarapace is extremely important. The juridical andthe cultural operate together, and the racializa-tions that they jointly license have been given aparticular force by President Bush’s declaration ofthe ‘war on terror’ as a war of ‘Civilization’against the barbarians at the gates (and within thewalls). This invocation of an indivisible globalcivilization works to make the exception – under-stood as a zone of indistinction between the lawand its suspension – invisible by conjuring ashape-shifting, nomadic enemy who inhabits theshadows beyond the human. This is a strategy thatdoes not so much sense the presence of the enemy,the midnight scurrying in the skirting-board, asproduce the enemy through the classifications ofits own unnatural history. Schmitt himself warnedthat to confiscate the word ‘humanity’ and mobi-lize it to wage war would mean ‘denying the ene-my the quality of being human and declaring himto be an outlaw of humanity’. By this means, hecontinued, war can ‘be driven to the most extremeinhumanity’. In short, ‘to fight in the name of hu-manity does not eliminate enmity’, as AndrewNorris observes: ‘it only makes one’s enemy therepresentative or embodiment of the inhuman’. 27

These reductions, given form through both the lawand its suspension, reactivate a colonial past in acolonial present:

These fine ethnic distinctions effectively re-vive a colonial economy in which infrahuman-ity, measured against the benchmark of health-ier imperial standards, diminishes humanrights and can defer human recognition. Thenative, the enemy, the prisoner and all the othershadowy ‘third things’ lodged between animaland human can only be held accountable under

special emergency rules and fierce martiallaws. Their lowly status underscores the factthat they cannot be reciprocally endowed withthe same vital humanity enjoyed by their well-heeled captors, conquerors, judges, execution-ers and other racial betters. 28

Second, by extrapolation, the United States hassought not only to displace ‘old Europe’ (Rums-feld’s dismissive phrase) but also to arrogate to it-self the power to draw new horizons of visibilityand to constitute itself ‘as the sovereign who tran-scends the law and thus assures its meaning and en-forcement’. In seeking to occupy the space of theglobal sovereign, this strategy renders internationallaw as ‘normal law’, ‘law properly so called’ insomething like Austin’s sense, by declaring itsbracketing or suspension. The logic articulatedthrough the ‘war on terror’ thus derives directlyfrom Schmitt’s political theology. It asserts that if‘international law is to be seen as universal and in-ternational politics as ethical,’ then, as CostasDouzinas remarks, ‘one power must be exemptedfrom its operations, and through its forceful inter-vention and sovereign interpretation of the law,give it its desired seamlessness’. It also gives it itsruthlessness, for the humanism that this licenses iswhat Douzinas calls a ‘military humanism’ that ef-faces its uncounted others as so many mute bearersof bare life. This is the pivot around which the rad-ical critique of American Empire turns. Where oncethe United States claimed to be exempt from thecorruptions of European forms of sovereignty,Hardt and Negri argue that it now claims exemptionfrom the law itself. And where once war was regu-lated, subordinated to international law, it is nowregulating, exploiting the conjunctions betweenviolence and the law.29

Guantánamo and the colonial pastColonialism frequently operates under the imprima-tur of law, both in the past and (as the people of Pal-estine and Iraq know only too well) in the present,and its violent assaults on land, liberty and life areregularly authorized and articulated through legalformularies. The legislative and interpretive fields,the actions of rulers and judges, are thus suffusedwith violence. If their metropolitan operation ‘takesplace in a field of pain and death’, as Robert Coveronce observed presciently, then how much more an-guished is their colonial mode of address? If theirnormal powers are ‘realized in the flesh’, as he also



remarked, then how much more painful is theiremergency invocation? 30

Guantánamo Bay bears the marks of these liga-tures between colonialism, violence and the law. Itsmodern history has been shaped by military en-counters between three imperial powers – Spain,the United States and the Soviet Union – and by en-during military occupation. Cubans rose againsttheir Spanish occupiers three times in the nine-teenth century: in 1868–1878, 1879–1880 and1895–1898. One of the principal architects of the fi-nal War of Independence was the exiled writer JoséMarti, who was killed in a battle with the Spanisharmy just one month after he returned to the island.It was one of his poems that later provided the in-spiration for the song ‘Guantánamera’. Alarmed bythe strength and success of the revolutionaries, theSpanish military governor sought to cut off theirsupport in the countryside through a policy ofreconcentración. Hundreds of thousands of peas-ants were forcibly relocated into barbed-wire con-centration camps close to the towns and cities,where many (some reports said as many as onehalf) of them were left to starve to death. An Amer-ican Senator who travelled through the four west-ern provinces described a landscape of terrible, ter-rifying indistinction: ‘It is neither peace nor war. Itis concentration and desolation’. Public opinion inthe United States was inflamed by press reports ofthese atrocities, but the desire for military interven-tion was also motivated by thoroughly instrumentaleconomic and strategic interests. In fact the UnitedStates had made repeated attempts to purchaseCuba from Spain in the closing decades of the nine-teenth century, and it was only after the last of theseoffers had been rejected in 1897 that Washington,buoyed by the rising tide of public opinion, founda pretext and in 1898 declared war on Spain. Theironies multiply. Then, as now, this was an imagewar. Photographs of the effects of Spain’s counter-insurgency operations heightened public condem-nation of its oppressive colonial regime. This is theorigin of the apocryphal telegram from WilliamRandolph Hearst to Thomas Remington in Havana:‘You furnish the pictures, and I’ll furnish the war’.And, as Daniel Ross wryly observes, ‘the Americanprize for its outrage at Spanish concentrationcamps in Cuba has become the right to run its owncamp on the same territory’. 31

When peace was concluded later that year Spainrelinquished all its overseas possessions but Cuba,far from being free, remained under American mil-itary occupation for three further years. In 1901 the

United States stipulated its conditions for Cubanindependence through provisions set out in thePlatt Amendment to the Appropriations Bill in theUS Congress that authorized continued financingof the occupation. The Cuban Constitutional As-sembly rejected these provisions as an encroach-ment on the independence and sovereignty of theisland, but the United States insisted that militaryoccupation would not end without their incorpora-tion into the constitution. They were narrowly en-dorsed by the Assembly in 1902, and reserved tothe United States the right to intervene in the future‘for the preservation of Cuban independence’ and,to that end, required Cuba to sell or lease to theUnited States ‘lands necessary for coaling or navalstations’. 32 Accordingly, Guantánamo Bay wasleased from Cuba in February 1903 ‘for the time re-quired for the purposes of coaling and naval sta-tions’ and the United States was permitted ‘to doany and all things necessary to fit the premises foruse as coaling and naval stations only, and for noother purpose’ (emphasis added). The lease couldonly be terminated with the consent of both partiesor through the unilateral abandonment of the baseby the United States. Its central provision read thus:

While on the one hand the United States reco-gnizes the continuance of the ultimate sove-reignty of the Republic of Cuba over the abovedescribed areas of land and water, on the otherhand the Republic of Cuba consents that dur-ing the period of the occupation by the UnitedStates of said areas under the terms of thisagreement the United States shall exercisecomplete jurisdiction and control over andwithin said areas.

Amy Kaplan argues that this language imposes ahierarchy between recognition and consent, ‘ren-dering Cuban sovereignty over Guantánamo Baycontingent on the acknowledgment of the UnitedStates, in exchange for which Cuba agrees to cedesovereignty over part of the territory it never con-trolled’. Many commentators have argued that indoing so the lease locates Guantánamo in an am-biguous space between the ‘ultimate sovereignty’of Cuba and the ‘complete jurisdiction’ of the Unit-ed States.33

In 1959, following the revolution, the govern-ment of Cuba tried unsuccessfully to terminate thelease, and since then it has maintained that the pres-ence of American armed forces on Cuban soil is anillegal occupation (as President Fidel Castro puts it,

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‘a knife in the heart of Cuba’s sovereignty’). At theheight of the Cuban missile crisis in October 1962,President John F. Kennedy rejected the advice ofhis Secretary of Defense Robert McNamara to pro-pose a timetable for US withdrawal fromGuantánamo as a quid pro quo for the removal ofSoviet medium-range missiles and bombers fromthe island. Kennedy also ignored requests fromboth Khruschev and Castro to return Guantánamoto Cuba. The base’s perimeter was strengthened asa symbolic frontier between capitalism and com-munism, and Guantanámo remained under Amer-ican occupation throughout the Cold War and be-yond. Over the years the base provided logisticalsupport for US military interventions in Cuba aswell as the Dominican Republic, Guatemala, Gre-nada, Nicaragua and Panama. Before the final dec-ade of the twentieth century, however, its role wasbeing reassessed, and in 1988 James H. Webb, Sec-retary of the Navy, thought it ‘reasonable to con-clude that we will lose our lease in GuantánamoBay in 1999’. His conclusion was premature; thelease was retained. From 1991 to 1994 Guantána-mo Bay was used to provide detention camps for36 000 refugees from the military coup in Haitiwho were denied entry into the United States, andagain in 1994–1995 to imprison 21 000 Cubansseeking asylum in the United States. The forced re-patriation of the detainees was justified on thegrounds that they were not entitled to constitutionalprotection until they were at or within the bordersof the United States. 34 This claim traded onGuantánamo’s ambiguous location, but the con-struction of detention camps also violated the termsof the lease, which allowed the land to be used asa coaling or naval station and, as I noted above, ‘forno other purpose’. A prison camp is an illegal ap-pendix to the original agreement, and yet it becamethe central mission of the base.35

When Kaplan describes Guantánamo as ‘haunt-ed by the ghosts of empire’, she is surely correct.She also suggests that its history reveals ‘a logicgrounded in imperialism, whereby coercive statepower has been routinely mobilized beyond thesovereignty of national territory and outside therule of law’. Much of that is accurate too; but, as Ihave shown, the base has also emerged through along process of legal argument, and it subsiststhrough legal formularies – bundles of memorandaand minutes, acts and amendments, treaties and theterms of the lease itself – that, taken together, haveproduced a legal impasse: a stand-off between theUnited States (which insists it has a right to occupy

Guantánamo) and Cuba (which has declared thecontinued occupation illegal). For this reason itseems necessary to add that the space of Guantána-mo also derives from law at a standstill. It is a zoneof indistinction where the legalized and the extra-legal cross over into one another.36

Guantánamo and the colonial presentThe Bush administration has made much of the pre-sumptive novelty of the ‘war on terror’, but the se-lection of Guantánamo as a prison camp, the des-ignation of its inmates as ‘unlawful combatants’and the delineation of a regime of interrogation donot depart from the historical templates that shapedthe base’s colonial history and their mobilization oflegal protocols. In particular, Fleur Johns arguesthat:

The plight of the Guantánamo detainees is lessan outcome of law’s suspension or eviscera-tion than of elaborate regulatory efforts by arange of legal authorities. The detentioncamps are above all works of legal representa-tion and classification. They are spaces wherelaw and liberal proceduralism speak and oper-ate in excess.37

This seems to me to be exactly right; but what is theimperative behind such excess? What demandssuch an involuted legalism through which the lawis contorted into ever more baroque distinctions?The answer is, in part, a matter of indeterminacy:the Bush administration did not speak with a singlevoice (until the President spoke). For far from thereactivation of the prison camps at Guantánamosignalling the retreat of law from the field of battle,there was a vigorous debate between the Depart-ments of Defense and Justice and the State Depart-ment over the prosecution of the ‘war on terror’.Legal advisers and political principals constantlyinvoked legal precedents and advanced legal inter-pretations to support their rival claims. The result,as Christiane Wilke argues, was that Guantánamowas not placed outside the law: ‘the applicable le-gal regulations [were] too dense to allow such aclaim’. But the result of these contending argu-ments – which eventually spilled over into thecourts – was to confine prisoners in what Wilkecalls ‘a place of rightlessness in a context that [was]not lawless’. 38 And this supplies the other part ofthe explanation: the President and his closest ad-visers were determined to treat the prisoners at



Guantánamo as legal objects rather than legal sub-jects in order to wage the ‘war on terror’ throughtheir very bodies. This virulently biopolitical strat-egy involved indefinite detention and ‘coercive in-terrogation’ but, as I now show, these required theadministration to mobilize two radically different,contradictory legal geographies.

Extra-territoriality and indefinite detentionThe immediate objective, on which both sidesseem to have agreed, was to place selected prison-ers taken during the war in Afghanistan beyond thereach of any federal district court that might en-tertain a habeas corpus petition. A writ of habeascorpus orders a prisoner to be brought before acourt to determine whether s/he has been impris-oned lawfully. Congress granted all federal courtsjurisdiction under title 28 of the United StatesCode to issue such writs to release from custodyprisoners held by state or federal agencies in vio-lation of the Constitution. 39 Here the ambiguousstatus of Guantánamo was assumed to confer adistinct advantage over other sites that had beenconsidered to be similar to the US bases on Mid-way and Wake. These were former Pacific IslandTrust territories administered by the United Statesthat were included within the federal district ofHawaii. Guantánamo, it was argued, was beyondthe reach of any district court because, while theUnited States exercised ‘complete jurisdiction’over the base, it was ‘neither part of the UnitedStates nor a possession or territory of the UnitedStates’. 40 One White House counsel revealed theadministration’s double-speak with unusual clari-ty: Guantánamo’s indeterminate location ‘wouldeliminate an important legal ambiguity’ by deny-ing prisoners held there access to US courts. Thereactivation of the Cuban camps thus producedprecisely the space envisaged in the President’sMilitary Order of 13 November 2001, in which itwould be possible to detain and try suspects ‘forviolation of the laws of war and other applicablelaws’ – in effect, acknowledging the supremacy ofthe rule of law – while simultaneously suspending‘the principles of law and rules of evidence gen-erally recognised in the trial of criminal cases inthe United States district courts’.41

This performance of the space of Guantánamowould eventually be contested. In December 2003the US Court of Appeals for the 9th Circuit pro-vided a radically different reading of the originallease. The majority noted that in attributing ‘ulti-

mate sovereignty’ to Cuba, the lease implied thatCuba’s sovereignty was residual in a temporalsense, from which it followed that, during its oc-cupation of the base, ‘the United States possessesand exercises all of the attributes of sovereignty’.Since Cuba does not retain any substantive sover-eignty while the base is occupied by the UnitedStates, the court concluded that ‘sovereignty vestsin the United States’, a finding which (as it record-ed) is consistent with the conduct of the UnitedStates, which has routinely treated Guantánamo ‘asif it were subject to American sovereignty’. In short,the majority determined that Cuba is the reversion-ary sovereign while the United States is the tempo-rary sovereign: but sovereign none the less. 42 InJune 2004, the Supreme Court in a separate caseruled that it had jurisdiction to hear habeas corpuspetitions from those imprisoned at Guantánamo.The administration had contested the extra-territo-rial application of federal law but the majority ar-gued that ‘[w]hatever traction the presumptionagainst extraterritoriality might have in other con-texts, it certainly has no application to the opera-tion of the habeas statute with respect to personsdetained within the territorial jurisdiction of theUnited States’. The majority did not think it nec-essary to establish sovereignty; the Achilles’ Heelof the administration’s case arose precisely becausethe United States exercised ‘complete jurisdictionand control’ over Guantánamo, in which case it waswithin the territorial jurisdiction of the UnitedStates. Since the government accepted that DistrictCourts had jurisdiction over federal agents and oth-er American citizens employed at Guantánamo, andsince non-resident aliens had access to UnitedStates courts to hear petitions of habeas corpus, themajority found that ‘the federal courts have juris-diction to determine the legality of the Executive’spotentially indefinite detention of individuals whoclaim to be wholly innocent of wrongdoing’. In hisdissenting opinion, however, Justice Scalia com-plained that in its ruling ‘the Court boldly extendsthe scope of the habeas statute to the four cornersof the earth’. Scalia roundly dismissed argumentsbased on jurisdiction; what was crucial, he insist-ed, was that Guantánamo was not ‘a sovereign do-minion’. Hence ‘the Commander in Chief and hissubordinates had every reason to expect that theinternment of combatants at Guantánamo Baywould not have the consequence of bringing thecumbersome machinery of our domestic courtsinto military affairs’.43

This was precisely their expectation. The admin-

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istration’s original provisions and determinations,elaborated through a series of detailed memoranda,were designed to produce a convergence betweensovereign power and governmentality throughwhat Judith Butler describes as ‘a law that is no law,a court that is no court, a process that is no process’.She sees this as an instrumental, expedient, para-le-gal tactic, in which both detention and trial are de-termined by discretionary judgements that ‘func-tion within a manufactured law or that manufacturelaw as they are performed’. 44 ‘Guantanámo’ wastaken to signify not only an ambiguous space – agrey zone over which the United States claims ju-risdiction but not sovereignty – but also a place ofindeterminate time:

As a territory held by the United States inperpetuity over which sovereignty is indefi-nitely deferred, the temporal dimensions ofGuantánamo’s location make it a chillinglyappropriate place for the indefinite detentionof unnamed enemies in what the administra-tion calls a perpetual war against terror.45

Intimate geographies and ‘coercive interrogation’But the imperative of indefinite detention, extend-ing the emergency ad infinitum, jibed against a sec-ond objective that interrupted its limbo with thecounter-imperative of speed.46 This is where battlewas joined between Defense and Justice on oneside and the State Department on the other. The firstgroup argued that the ‘war on terror’ had inaugu-rated a new paradigm that required interrogators ‘toquickly obtain information from captured terroristsand their sponsors’, and in their view this rendered‘obsolete [the] Geneva [Convention]’s strict limi-tations on questioning of enemy prisoners’.47 Thatbeing so – and law officers in the State Departmentprotested that it was not so: ‘a decision that theConventions do apply [to all parties in the war inAfghanistan] is consistent with the plain languageof the Conventions and the unvaried practice of theUnited States’ – interrogations would have to beconducted beyond the prosecutorial reach of boththe federal War Crimes Act and the Geneva Con-ventions. Accepting the advice of Defense and Jus-tice, Bush declared that none of the provisions ofthe Geneva Conventions applied to al-Qaeda pris-oners. He also accepted that he had the authority‘under the Constitution to suspend [the] Geneva[Conventions] as between the United States and

Afghanistan’, and his favoured legal advisers out-lined several ways in which he might do so. Signa-tories to the Conventions have the right to ‘de-nounce’ them, but they are required to give oneyear’s written notice and, if this takes place duringan armed conflict, their repudiation is stayed untilthe end of hostilities. Not surprisingly, Bush decid-ed not to invoke this option (though he reserved theright to do so in future); he preferred the expedientof deeming Taliban prisoners to be ‘unlawful com-batants’ who ‘did not qualify as prisoners of warunder the Geneva Conventions’.48 Although thereare established procedures to determine the statusof prisoners taken during armed conflict, the WhiteHouse insisted that these were only to be invokedwhere there was doubt. And in the view of the Pres-ident’s inner circle, reinforced by their politicaltheology, there could never be any doubt.49

Here was sovereign power at its most naked, andwhen the first prisoners from Afghanistan arrived atGuantánamo Bay in January 2002, it was viscerallyclear that they were to be reduced to bare life. Alllegal protections had been visibly withdrawn fromthem. Photographs of their transportation and in-carceration at once displayed and reinforced theirreduction to something less than human. They hadbeen chained, gloved, ear-muffed and maskedthroughout their twenty-seven-hour flight, and ar-rived soaked in their own bodily waste. Otherwise,the chairman of the Joint Chiefs of Staff explained,they would ‘gnaw through hydraulic lines at theback of a C-17 to bring it down’. As they slowlyshuffled down the ramp in their jumpsuits, one re-porter wrote: ‘[They] don’t look natural. They looklike giant bright orange flies’. Then were led off totheir makeshift steel-mesh cages at Camp X-Ray.50

The Department of Defense published its own pho-tographs of their arrival, shackled between guards,kneeling and bound, or transported on stretchers tointerrogation and the camp and its cell-blocks, andButler is surely right to conclude that this was done‘to make known that a certain vanquishing had tak-en place, the reversal of national humiliation, a signof successful vindication’.51

Camp X-Ray was thrown up in a matter of weeksas a short-term expedient; it was closed in April2002 when detainees were transferred to cells in thenew, more modern Camp Delta, which was intend-ed for long-term incarceration. It consists of fourinternal camps: Camps 1, 2 and 3 are maximum-se-curity facilities in which prisoners are confined toindividual cells with varying levels of restrictionand privilege, and Camp 4 is a medium-security fa-



cility in which prisoners live in communal dormi-tories. The movement of prisoners through the fourlevels depends on their cooperation with their cap-tors and, in particular, their willingness to provideintelligence of value in the ‘war on terror’. And yeta senior CIA analyst soon concluded that many ofthe prisoners were minor players or wholly inno-cent people who had been turned in by warlords andlocal militia, police officers and villagers to settleold scores or to receive bounties of thousands ofdollars (‘This is enough money to take care of yourfamily, your village, your tribe for the rest of yourlife’). This was later confirmed by a detailed anal-ysis of Combatant Status Review Board Letters(written determinations produced by the US gov-ernment) by Seton Hall Law School, which con-cluded that 93% of the detainees were captured notby US troops at all but by Pakistan or the NorthernAlliance and turned over to US custody, and that onthe government’s own admission 55% of the de-tainees had not committed any hostile acts againstthe United States or its coalition allies. Only 8%were characterized as al-Qaeda fighters, and whilemany were associated with the Taliban in one wayor another the detainees include few if any of theministers, governors, mayors or police chiefs whoheld office under the Taliban: many were simplyconscripts. ‘Evidence’ used to determine their sta-tus as ‘enemy combatants’ included possession ofa Kalashnikov rifle (hardly unusual in the gun-cul-tures of Afghanistan and the Pakistan border) or aCasio watch (capable of being used as a bomb tim-er) or the use of a guesthouse (commonplace in Af-ghanistan).52

While this is truly dreadful, our horror ought notto be measured by the innocence or guilt of the pris-oners – which in any case is subject to the judicialprocess denied to them – but by the calculated with-drawal of subjecthood from all of them. The legaldeterminations of the location of Guantánamo Bayworked in concert with the imaginative geogra-phies of the ‘war on terror’ to produce what Butlercalls ‘a zone of uninhabitability’:

The exclusionary matrix by which subjectsare formed requires the simultaneous produc-tion of a domain of abject beings…. The ab-ject designates here precisely those ‘unliva-ble’ and ‘uninhabitable’ zones of social lifewhich are nevertheless densely populated bythose who do not enjoy the status of the sub-ject, but whose living under the sign of the‘unlivable’ is required to circumscribe the do-

main of the subject. This zone of uninhabita-bility will constitute the defining limit of thesubject’s domain.53

If the prisoners were ‘bodies that mattered’, to con-tinue to speak with Butler, then in Washington mea-sures were being contemplated to ensure that theymattered only as bodies: as biopoliticized bare life.Throughout the discussion that follows, it is neces-sary (if extraordinarily difficult) to remember thatthe Bush administration insisted repeatedly thatprisoners would be treated in a manner ‘consistentwith’ the Geneva Conventions. But such a claim –however implausible it turns out to be – relegatesthe treatment of prisoners to a matter of policy notlaw; it is not an acknowledgement that the actionsof the United States are subject to the Geneva Con-ventions, and this lexical slippage creates a space ofexecutive discretion (Schmitt’s ‘decision’) thatwould otherwise be (and as a matter of fact is)closed by international law. 54 It is through thisspace, through its performative reductions, that theabstractions of geopolitics are folded into the inti-macies of the human body. For this reason, it is alsonecessary to keep in mind this passage from J. M.Coetzee’s Waiting for the Barbarians:

[M]y torturers … were interested only in whatit means to live in a body, as a body, a bodywhich can entertain notions of justice only aslong as it is whole and well, which very soonforgets them when its head is gripped and apipe is pushed down its gullet and pints of saltwater are poured into it until it coughs andretches and flails and voids itself.55

For it was torture that preoccupied the highestreaches of the Bush administration.

Here too Guantánamo conferred a distinctiveand, so it was argued, a double advantage. First, itallowed Camp Delta to be constructed as what Jo-seph Margulies describes as ‘the ideal interrogationchamber’. Prisoners are at their most vulnerablewhen they are first captured, and the art of interro-gation is to reopen that window of opportunity forproductive questioning. Ideally, this requires aclosed space, isolated from interruptions from theoutside world – for which the island camps are ideal– so that captors may exert the greatest possiblecontrol over their captives and thereby elicit whatthe US Army’s Field Manual 34–52 (IntelligenceInterrogation) hails as their ‘willing cooperation’.The Manual emphasizes that international law pro-

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scribes torture and coercive interrogation, and re-quires military interrogators to comply with theGeneva Conventions. The US Army has developedits own counter-interrogation strategies as part ofits Survival, Evasion, Resistance and Escape(SERE) programmes, however, and these SEREtechniques were made available to interrogators atCamp Delta. In addition, the CIA has its own hand-books which, like the SERE techniques, seek tocapitalize on the prisoners’ sense of vulnerabilityby reproducing moments of ‘significant traumaticexperience’.56 It is thus dismally ironic that, as Co-rine Hegland remarks, ‘even as the CIA was decid-ing that most of the prisoners at Guantánamo didn’thave much to say, Pentagon officials were gettingfrustrated with how little the detainees were say-ing’. 57 In the summer of 2002, Alberto Gonzales,Counsel to the President and now Attorney-Gener-al, was busily considering advice from the Depart-ment of Justice about the bearing of the internation-al Convention Against Torture and Other Cruel, In-human and Degrading Treatment or Punishment asimplemented by title 18 (Part I, Chapter 113C) ofthe United States Code on the conduct of interro-gations outside the United States. Under §2340A ofthe Code, ‘whoever outside the United States com-mits or attempts to commit torture’ or conspires tocommit torture is guilty of a criminal offence (em-phasis added). This presented the White Housewith a real prisoner’s dilemma, of course, becauseGuantánamo had been selected as a site of indefi-nite detention because it was outside the UnitedStates. But – the second advantage of the islandcamps – the Department of Justice pointed out thatthe relevant provisions of the Code defined theUnited States as ‘all areas under the jurisdiction ofthe United States’, including all places and waters‘continental or insular’. In addition, according tothe lease, the United States exercised ‘complete ju-risdiction’ over the base. Through this contorted le-gal geo-graphing, Guantánamo was outside theUnited States in order to foreclose habeas corpuspetitions from prisoners held there and inside theUnited States in order to forestall prosecutions fortorturing them. As Voltaire put it: ‘Those who canmake you believe absurdities can make you commitatrocities’.58

The memorandum also provided an intricateparsing of definitions of ‘torture’ that not onlyraised the bar at which the conjunction of violenceand pain turned into torture but made this thresholdthe property of the torturer. First, ‘only the most ex-treme forms of physical or mental harm’ would

constitute torture: severe pain that would ‘ordinari-ly’ be associated with ‘death, organ failure or seri-ous impairment of bodily functions’, or severemental suffering that produced ‘prolonged mentalharm’. This allowed ‘a significant range of acts thatthough they might constitute cruel, inhuman or de-grading treatment fail to rise to the level of torture’.Second, a defendant could only be convicted ifthese consequences were a known and intendedoutcome of his or her actions: ‘Where a defendantacts in good faith, he acts with an honest belief thathe has not engaged in the proscribed conduct’. Ifthese sophistries were not enough, Gonzales was fi-nally, implausibly but chillingly assured that ‘crim-inal statutes’ could not infringe on the President’s‘complete’ and ‘ultimate’ authority over the con-duct of war, including the interrogation of prison-ers.59

This memorandum had been prepared with CIArather than military interrogations in mind, but thelines were already becoming blurred. In October2002 the Joint Chiefs of Staff were presented withrecommendations from the Joint Task Forcecharged with conducting ‘Department of Defense/Interagency’ interrogations at Guantánamo to al-low a graduated series of increasingly ‘aggressive’techniques to be used against prisoners who had‘tenaciously resisted’ current methods. Category Itechniques involved direct questioning, yelling anddeception; Category II techniques involved the useof stress positions, hooding, removal of clothingand forced shaving, and the induction of stressthrough aversion (‘such as fear of dogs’); CategoryIII techniques involved convincing the prisoner thatdeath or severe pain were imminent for him and/orhis family, ‘exposure to cold weather or water’, and‘use of a wet towel and dripping water to induce themisperception of suffocation’. The Department ofDefense authorized the first two categories and not-ed that while all the techniques in the third categorymay be ‘legally available’ their approval was notwarranted ‘at this time’.

If the skeletal list of approved techniques seemsunremarkable, even banal, this is the result of twostrategic omissions. First, the list contained no lim-its on the use of these techniques, and in a remark-ably pointed exchange the General Counsel for theNavy, Alberto Mora, urged William Haynes, theGeneral Counsel for the Department of Defense,‘to think about the techniques more closely:’

What did ‘deprivation of light and auditorystimuli’ mean? Could a detainee be locked in



a completely dark cell? And for how long? Amonth? Longer? What precisely did the au-thority to exploit phobias permit? Could a de-tainee be held in a coffin? Could phobias beapplied until madness set in?

Seen thus, Mora insisted, there was no clear line be-tween these techniques and torture. 60

Second, the list was concerned entirely with in-struments and provided no consideration of theireffects. Since the end of the Second World War theUnited States has developed a consistent interroga-tion protocol that centres on sensory deprivationand self-inflicted pain. According to historian Al-fred McCoy, ‘the method relies on simple, even ba-nal procedures – isolation, standing, heat and cold,light and dark, noise and silence – for a systematicattack on all human senses’. Early experimentsshowed that subjects could stand only two or threedays of being goggled, gloved and muffled in alighted cubicle, while forced standing for eighteento twenty-four hours produced ‘excruciating pain’as ankles swelled, blisters erupted, heart ratessoared and kidneys shut down. These ‘no-touch’techniques leave no marks, but they create ‘a syn-ergy of physical and psychological trauma whosesum is a hammer-blow to the fundamentals of per-sonal identity’: they deliberately ravage the body inorder to ‘un-house’ the mind. 61 I say ‘un-house’advisedly because, as Mark Bowden notes, tortureworks to make space and time, ‘the anchors of iden-tity’, become ‘unmoored’ so that the victim is ma-rooned in a surreal ‘landscape of persuasion’ whereeverything becomes ‘tangled’. If Wittgenstein wasright to say that the limits of our language mean thelimits of our world, then it should be clear whyElaine Scarry describes torture as a deliberate ‘un-making’ of the world. Pain does not simply resistlanguage – located beyond the sphere of linguisticcommunication – ‘but actively destroys it, bringingabout an immediate reversion to a state anterior tolanguage, to the sounds and cries a human beingmakes before language is learned’. 62 If prisonersare reduced to bare life through torture, violentlycast into a world beyond language, then the act ofremembering their trauma is both infinitely fragileand, in its potentiality, profoundly political. For theattempt to give voice to their physical pain gives thelie to those who would ventriloquize its infliction as‘intelligence-gathering’.63

In January 2003, Secretary of Defense DonaldRumsfeld withdrew his permission for the use ofCategory II techniques and convened a Working

Group to prepare an assessment of ‘Detainee Inter-rogations in the Global War on Terrorism’. Its finalreport was not circulated to those who had beencritical of the original recommendations. In effect,the Pentagon was now pursuing what Jane Mayerdescribes as a ‘secret detention policy’ whoseguidelines followed the memorandum of the previ-ous August to the letter. The report found that, be-cause Guantánamo is within the United States forthe purpose of title 18, ‘the torture Statute does notapply to the conduct of US personnel at GTMO’. Itreaffirmed the inadmissibility of the Geneva Con-ventions and noted that the US government wouldreject any attempt by the International CriminalCourt to assert jurisdiction over US nationals. Andin reaffirming the ultimate authority of the Presi-dent its authors made an astonishing appeal to theprecedent set by the Nuremberg tribunals: ‘The de-fense of superior orders will generally by availablefor US Armed Forces personnel engaged in excep-tional interrogations except where the conduct goesso far as to be patently unlawful’. The report sug-gested a range of thirty-five interrogation tech-niques from ‘asking straightforward questions’ andproviding or removing privileges through hooding,‘mild physical contact’ and dietary or environmen-tal manipulation to ‘exceptional’ measures that in-cluded isolation, twenty-hour interrogations,forced shaving, prolonged standing, sleep depriva-tion, ‘quick, glancing slaps’, removal of clothingand ‘use of aversions’ (‘simple presence of dog’).Rumsfeld approved twenty-four of them. Althoughhe withheld approval of all the ‘exceptional’ mea-sures other than isolation, however, the list of au-thorized techniques contained none of the cruciallimitations and said nothing about their effects.There was thus considerable latitude for coerciveinterrogation to slide through cruel, inhuman anddegrading treatment into outright torture. If thiswere not enough, Rumsfeld also accepted that ‘in-terrogators [ought to be] provided with reasonablelatitude to vary techniques’ for reasons that includ-ed the degree of resistance and ‘the urgency of ob-taining information’.64

I have no way of knowing how much ‘latitude’that final clause was intended to allow; I simplymake two observations. First, testimony from pris-oners released from Guantánamo makes it clearthat the red lines, such as they were, were repeat-edly crossed. There have been consistent, crediblereports of enforced nudity; exposure to extremes oftemperature; deprivation of food, water and painmedication; induced disorientation through loud

DEREK GREGORY


music, strobe lighting and sleep deprivation; men-acing by dogs; prolonged short-shackling in foetalpositions; sexual taunting and assault; immersionin toilet bowls to induce a fear of drowning; and iso-lation for months at a time.65 Second, notwith-standing the limitations placed on military interro-gations, the CIA had been authorized to use six ‘en-hanced’ techniques since March 2002, which in-cluded forcing prisoners to stand, handcuffed andshackled, for more than forty hours; forcing themto stand naked in a cold cell for prolonged periodsand frequently dousing them with cold water; andsimulated drowning (‘waterboarding’). The CIAran its own prison within the complex (withinCamp Echo, which was built to house detaineeswho were awaiting hearings before Military Com-missions), but the CIA and the military frequentlyworked in concert because Guantánamo was thedesignated operating base for a Joint InteragencyInterrogation Facility. 66 In an interview followingthe three suicides, McCoy put it like this:

Guantánamo is not a conventional militaryprison. It’s an ad hoc laboratory for the perfec-tion of CIA psychological torture. Guantána-mo is a complete construction. It’s a system oftotal psychological torture, designed to breakdown every detainee contained therein, de-signed to produce a state of hopelessness anddespair. 67

Indeed, the commander of JTF Guantánamo, Ma-jor-General Geoffrey Miller, described the facilityas a central ‘laboratory for the war on terror’. InSeptember 2003 he led a specialist team to Iraq toassess the Army’s detention and interrogation op-erations, and recommended the introduction of‘new approaches and operational art’ developed atGuantánamo to facilitate the ‘rapid exploitation’ ofprisoners for ‘actionable intelligence’. By the win-ter of 2003 to 2004, journalist Seymour Hersh con-cluded, ‘Abu Ghraib had become, in effect, anotherGuantánamo’.68

During the summer of 2005, when Senator JohnMcCain proposed an amendment to the DefenseAppropriation Bill that would ban cruel, inhumanor degrading treatment or punishment of anyone inUS custody anywhere, the Vice-President insistedthat the CIA should be exempt – it required ‘extralatitude’ (that word again) – and the White Housevigorously rejected any such measure that would‘restrict the President’s authority [not ability] toprotect Americans from terrorist attack’. The bill

passed the Senate 90–99 and the House 308–122,but when the President reluctantly signed the De-tainee Treatment Act into law at the year’s end headded a defiant signing statement insisting that hewould interpret its provisions in a manner consist-ent with ‘constitutional limitations on the judicialpower’ and his own executive powers to protect na-tional security, and he made it clear that he reservedthe right to waive those restrictions in ‘special sit-uations’. Thus the hermeneutic circle – the mutu-ality of interpretation – is hammered flat until it fitsthe Oval Office.69 However, it turns out that the Actcontained its own Catch-22 inserted by SenatorLindsey Graham. In March 2006 lawyers for theDepartment of Justice reminded a district courtthat, under the provisions of the Act, prisoners atGuantánamo only had the right to appeal their des-ignation as enemy combatants – not to seek protec-tion against their treatment there. As Human RightsWatch put it, ‘The law says you can’t torture de-tainees at Guantánamo, but it also says you can’tenforce that law in the courts’.70

The global war prisonI hope this analysis helps to explain why threeyoung men imprisoned at Guantánamo took theirown lives, and why the Bush administration (at var-ious levels) responded in the way it did. After thethree suicides, the President announced that hewould like to close Guantánamo because it gavecritics what he called ‘an excuse’ to say that theUnited States was not upholding the very values itclaimed to be defending. In fact, transfers to the is-land camps were suspended in September 2004,and there are plans to transfer many detainees toother sites in the global war prison. But this doesnot herald the end of Guantánamo.

Soon after the Supreme Court ruled in Rasul v.Bush in June 2004 that federal courts could hearhabeas corpus petitions from those imprisoned atGuantánamo, the National Security Council haltedtransfers from Afghanistan, and the Pentagon or-dered the expansion of its prison at Bagram 50kmnorth of Kabul. In 2002 the US Army had converteda vast machine shop at the former Soviet aircraftmaintenance base into a short-term collection andscreening centre (‘Bagram Temporary InternmentFacility’). Its purpose was to interrogate prisonerstransported forward from operating bases else-where in Afghanistan, who would then be released,imprisoned in Afghan jails or transferred toGuantánamo. This makes the process seem more



systematic than it was; subsequent investigationsconcluded that the new, ‘non-linear battlespace’ re-quired considerable improvisation in the manage-ment of prisoners, and this resulted in the develop-ment of ad hoc procedures, serious mistakes inscreening prisoners, and extraordinary delays in re-leasing those detained by mistake. In March 2004175 people were held at Bagram in wretched con-ditions. An inspection found that the building hadinadequate ventilation, sanitation and lighting, andthat its roof had multiple leaks. The capacity of themakeshift prison was 275, but during the followingyear, after the flights to Guantánamo were suspend-ed, it held as as many as 600 people at any one time.Since the President had decreed that the GenevaConventions would not apply to those taken pris-oner during the war in Afghanistan, the US militaryreferred to them not as prisoners of war but ‘Per-sons Under Control’ (PUC). They were held inlarge wire cages, and the conditions remained ru-dimentary. One former prisoner described the com-pound as being ‘like the cages in Karachi [Zoo]where they put animals’. Significantly, the Penta-gon has released no images of its detention opera-tions at Bagram, unlike those at Guantánamo, andits slick web page on ‘detainee affairs’ is silentabout conditions there. More: since the Rasul de-cision was limited to Guantánamo, prisoners at Ba-gram continue to have no habeas rights; they arenot allowed to appear before the military panels re-viewing their continued imprisonment; they haveno right to hear the allegations against them; andthey have been denied access to lawyers. Camp X-Ray may have closed at Guantánamo, but for allpractical purposes it has been transplanted to Ba-gram. 71 As the Taliban resurgence continues togain strength, and British and Canadian troops con-duct ever more aggressive counter-insurgency op-erations in the southern countryside, the number ofprisoners held there is likely to increase. It is im-possible to be precise, however, because no detailsabout the transfer of prisoners from coalition toAmerican custody have been released and the pris-on remains shrouded in secrecy.

By the spring of 2005 it was clear to two report-ers that the wheel had turned full circle and that Ba-gram was part of a radical plan to reconfigure theglobal war prison. In the summer, negotiationswere under way to transfer those who would nolonger be held at Guantánamo to Afghanistan, Sau-di Arabia and Yemen, where they would be incar-cerated in new maximum-security jails financedand constructed by the United States. In April 2006

the Pentagon announced that it planned to repatri-ate a further 140 prisoners ‘who have been deter-mined to be no longer enemy combatants’. But theState Department announced that they would notbe released until it was satisfied that they would betreated humanely on their return. Particular con-cern was expressed about Algeria, Egypt, SaudiArabia, Uzbekistan and Yemen. According to oneofficial, ‘We don’t want to send people to a countrywhere we are going to find out two weeks later thatthey’ve been tortured’. This is particularly richcoming from an administration that has done eve-rything in its power to facilitate the torture of pris-oners in its own camps, but it is stupefying whenGuantánamo is wired to the system of extraordi-nary renditions through which prisoners are madeto disappear to torture chambers in those samecountries (and others) or to a network of CIA ‘blacksites’ for ‘enhanced interrogation’.72

To date, 267 prisoners have been released fromGuantánamo and eighty more have been trans-ferred to their own countries for continued deten-tion. But this is not a process of emptying the islandprison. On the contrary; around 470 people remainincarcerated, and construction of new camps hascontinued. Two new maximum-security campshave been designated for the indefinite, potentiallypermanent detention of suspected members of al-Qaeda and other terrorist groups who, it was orig-inally announced, were unlikely to go before a mil-itary tribunal for lack of evidence but whom the ad-ministration ‘does not want to set free or turn overto courts in the United States or other countries’.Camp 5 opened in May 2004 and an even largerCamp 6 was scheduled for completion by Septem-ber 2006. Together the two will house around 300prisoners. In September 2006 fourteen prisonerswere transferred from the CIA’s black sites toGuantánamo, and the President insisted that theywould be tried before military tribunals. He defend-ed the ‘alternative set of procedures’ to which theyhad been subjected in CIA custody as ‘safe, lawfuland necessary’, and it is hardly surprising that hewas equally adamant that the tribunals would admitevidence obtained through ‘coercive interroga-tion’.73

The aggrandizement of sovereign power is char-acteristic of colonial regimes, and the obsessionwith torture is a commonplace of colonial violence.These colonial dispositions are marginalized byAgamben’s metropolitan predilections, but thereare intimate connections between the methods usedby the United States and those used by France in

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Algeria, Britain in Africa and Israel in Palestine. Inaddition, from the School of the Americas (now theWestern Hemisphere Institute for Security Cooper-ation), originally based in Panama and since 1984at Fort Benning in Columbus, Georgia, the UnitedStates has trained more than 60 000 soldiers andpolice officers from the Caribbean and Central andSouth America in counter-insurgency methods thatinclude coercive interrogation and torture.74 Whatis novel about the current situation is that the ob-session with torture does not breed in darkness, inthe secret shadows of the state; it flowers in thethreshold between the legal and the extra-legal.This does not mean that Guantánamo is a transpar-ent space; its effectiveness for those beyond its cag-es lies precisely in its being a space of constrictedvisibility. Much of what takes place there is stillhidden from the public gaze, but enough is seen forthe envelope of fear to send its message. 75 For thenational security state thrives on fear: the fear ofterrorism to legitimate its actions, and the fear oftorture to intimidate those it casts as its enemies. Inthis sense, the ‘war on terror’ is both a war on lawand a war fought through the law (‘law as tactic’,as Foucault might say). Margulies notes that ‘twinlegal systems – the separation of powers and thelaws of war – limit war’s reach and regulate its con-duct’. The Bush administration has sought to de-construct both pillars through executive assertionand juridical legerdemain; it engorges and feedsupon the grey zone between the legal and the extra-legal.76

These considerations have important politicalimplications. I have tried to show that the law is notoutside violence, and that the ‘war on terror’ twiststheir embrace into ever more frenzied and furtivecouplings. ‘If we want to resist the reassertion ofthe form of sovereignty at work today in the war onterror,’ then Julian Reid argues that ‘it is essentialthat we focus upon this complicity of law and force:in other words, the complicity of the bio-politicaland the sovereign’. 77 This means, among otherthings, that law becomes the site of political strug-gle not only in its suspension but also in its formu-lation, interpretation and application.

I understand Kaplan’s pessimism about purelylegal forms of opposition. She fears that the Su-preme Court’s decisions over Guantánamo, whichhave been widely interpreted as reversals for theadministration, could still be enlisted in the serviceof ‘a shadowy hybrid legal system coextensive withthe changing needs of empire’. Their capacity torein in the discretionary exercise of executive pow-

er over the fate of prisoners is strictly limited, sheargues, because they do not resolve the ambiguousgeo-graphing of Guantánamo on which the admin-istration has capitalized. 78 Kaplan was writing be-fore the most recent Supreme Court ruling in June2006 that struck down the military tribunals set upto try the Pentagon’s prisoners as illegal under bothfederal and international law. In a five to three ver-dict, the Court found that the President had exceed-ed the bounds placed by Congress on his executiveauthority through the Uniform Code of MilitaryJustice and its incorporation of the Geneva Conven-tions. Accordingly, it reminded the administrationthat ‘nobody in enemy hands can be outside thelaw’. Contrary to the President’s military order,therefore, the Court determined that all prisonerstaken during armed conflict, including members ofal-Qaeda and the Taliban, are protected underCommon Article 3 of the Geneva Conventions:they must not be tortured or subjected to cruel, in-human or degrading treatment, and they must betried before regularly constituted courts that pro-vide generally recognized judicial guarantees. Thedecision has been described as ‘the most significantrebuke’ to the President’s assertion of executivepower since he took office and ‘a sweeping victoryfor the rule of law’, while supporters of the admin-istration have criticized the majority on the Courtfor its ‘willingness to bend to world opinion’ and itsattempt to suppress what the indefatigable JohnYoo called ‘creative thinking’.79

Yet Kaplan’s reservations have considerabletraction here too. The ruling covers the conditionsunder which prisoners may be held and tried, but ithas no direct bearing on their continued detention.The Pentagon circulated a memorandum acceptingthat Common Article 3 would now apply to all pris-oners under its control, but no comparable state-ment was issued about the treatment of prisonersheld by the CIA. In September a new Army FieldManual was released that authorized nineteen in-terrogation techniques and expressly outlawedhooding, forced nudity, beating, threatening withdogs, deprivation of food, water or medication, sex-ual humiliation and ‘waterboarding’. But the CIAwas not only exempted from these provisions: theadministration proposed legislation that wouldmake its ‘alternative set of procedures’ lawful. ThePresident also announced that he would complywith the Court’s ruling on tribunals, but his adviserscapitalized on Justice Breyer’s emollient qualifica-tion: ‘Nothing prevents the President from return-ing to Congress to seek the authority he believes he



needs’. The administration’s legal officers urgedCongress to pass new legislation that would denyprisoners access to lawyers before interrogation,retain the use of military tribunals, and authorizeevidence obtained by hearsay and coercion. AsJohn Yoo explained, the proposed legislation wouldcountermand Hamdan by affirming that ‘the Gene-va Conventions are not a source of judicially en-forceable individual rights’.80

Even so, all is not lost. These responses confirmthe political struggle involved. In fact, the admin-istration’s aggressive restatement of its preferenc-es met with considerable scepticism in Congres-sional hearings, and senior military lawyers urgedthe Senate Armed Services Committee to endorsethe substance of the Supreme Court ruling. Theyinsisted that the integrity of the Uniform Code ofMilitary Justice be retained and that the protec-tions afforded by the Geneva Conventions be re-spected.81 In doing so, they made common causewith a host of others who have tried to resist thereduction of human beings to bare life in the glo-bal war prison. For the prisoners at Guantánamo,this has involved challenges from politicians, civilservants and lawyers inside as well as outside theBush administration, and from prominent nationaland international political, juridical and humanrights organizations, all of which confound at-tempts to place them outside the law. It has also in-cluded the painstaking recovery of the experienc-es of prisoners at Bagram, Guantánamo, Abu Gh-raib and elsewhere by Amnesty International, Hu-man Rights Watch, the Center for ConstitutionalRights and others, all of which confound attemptsto place them outside language. And the prisonersthemselves have refused to be reduced to bare life:insisting on their individual dignity, standing theirground before hostile military tribunals, and un-dertaking directly biopolitical modes of resis-tance, including hunger strikes and suicide at-tempts that culminated in the deaths of those threeyoung men in June 2006.

All of this matters because, while I think Agam-ben is wrong to represent the space of exception asthe paradigmatic space of political modernity, I dobelieve it is a potential space whose artful brutali-ties must be – and are being – resisted at every turn.To repeat: there is nothing ineluctable about the tri-umph of the security state or the generalization ofthe space of exception, and I conclude in that spiritby hoisting a different black flag over GuantánamoBay. Howard Ehrlich celebrates the anarchist flagwith these words:

The black flag is the negation of all flags. It isa negation of nationhood which puts the hu-man race against itself and denies the unity ofall humankind. Black is a mood of anger andoutrage at all the hideous crimes against hu-manity perpetrated in the name of allegianceto one state or another….

Black is also a color of mourning; the blackflag which cancels out the nation also mournsits victims, the countless millions murdered inwars, external and internal… But black is alsobeautiful. It is a color of determination, of re-solve, of strength, a color by which all othersare clarified and defined.82

Let us make it so.

Derek GregoryDepartment of GeographyUniversity of British Columbia2329 West Mall VancouverBC, Canada V6T 1Z4E-mail: [email protected]

Notes1. Julian Barnes and Carol Williams, ‘Guantánamo’s first sui-

cides pressure U.S’., Los Angeles Times, 11 June 2006;James Risen and Tim Golden, ‘3 Prisoners commit suicideat Guantánamo’, New York Times, 11 June 2006; JoshWhite, ‘Three detainees commit suicide at Guantánamo’,Washington Post, 11 June 2006; Andrew Buncombe,‘Washington condemns first suicides by Guantánamo in-mates as “a PR exercise”’, Independent, 12 June 2006.There had been many previous suicide attempts but, consist-ent with these responses, their numbers were reduced by thesimple expedient of reclassifying most of them as ‘manipu-lative self-injurious behaviour’: David Rose, Guantánamo:America’s War on Human Rights (London: Faber, 2004),pp. 64–66.

2. Agamben’s Homo Sacer project comprises several volumesthat he says ‘should form a tetralogy’. Those published todate are: Homo Sacer: Sovereign Power and Bare Life(trans. Daniel Heller-Roazen) (Stanford: Stanford Universi-ty Press, 1998; first published in Italian in 1995) [which heidentifies as Homo Sacer I]); State of Exception [Homo Sac-er II. 1] (trans. Kevin Attell) (Chicago, IL: University ofChicago Press, 2005; first published in Italian in 2003); andRemnants of Auschwitz: The Witness and the Archive [Ho-mo Sacer III] (trans. Daniel Heller-Roazen) (New York:Zone Books, 1999; first published in Italian in 1998).

3. Peter Fitzpatrick, ‘Bare sovereignty: Homo Sacer and theinsistence of law’, in Andrew Norris (ed.), Politics, Meta-physics and Death: Essays on Giorgio Agamben’s HomoSacer (Durham, NC: Duke University Press, 2005) pp. 49–73, 51–55; Rainer Maria Kiesow, ‘Law and life’, loc. cit.,pp. 248–261, 255. It will be apparent from these criticismsthat the significance of Agamben’s argument does not de-

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pend on any parallels that might be drawn between the Ro-man Empire and the New Rome on the banks of the Potom-ac. What matters is less his reading of homo sacer than hiselaboration of ‘bare life’.

4. Walter Benjamin, ‘Critique of violence’, in Marcus Bullockand Michael W. Jennings (eds) Walter Benjamin: SelectedWritings, Volume I, 1913–1926 (Cambridge, MA: HarvardUniversity Press, 1996), pp. 236–252. Benjamin adds:‘What is here pronounced sacred was according to ancientmythical thought the marked bearer of guilt: life itself’. Wemight remind ourselves that sacer means both ‘sacred’ and‘accursed’, but Agamben recognized this tension in his pre-vious writings only to reject it in Homo Sacer.

5. Catherine Mills, ‘Agamben’s messianic politics: biopolitics,abandonment and happy life’, Contretemps, 5 (2004), pp.42–62, 46. This is a critical distinction: ‘bare life’ is poisedbetween political life (bios) and biological or existent life(zoe).

6. Agamben, Homo Sacer, pp. 18–20, 25, 28, 37. My under-standing of Agamben and the exception is indebted to Nass-er Hussain, Melissa Ptaceck, ‘Thresholds: sovereignty andthe sacred’, Law and Society Review, 34 (2000), pp. 495–515; Andrew Norris, ‘The exemplary exception: philosophi-cal and political decisions in Giorgio Agamben’s HomoSacer’, in Norris (ed.) Politics, metaphysics and death, pp.262–283.

7. Walter Benjamin, ‘On the concept of history’, in HowardEiland and Michael W. Jennings (eds) Walter Benjamin: Se-lected Writings, Volume 4, 1938–1940 (Cambridge MA:Harvard University Press, 2003), pp. 389–400.

8. Agamben, Homo Sacer, pp. 12, 123, 170–171, 174, 176;Agamben, State of Exception, pp. 86–87; cf. MichelFoucault, ‘Society Must be Defended”: Lectures at the Col-lège de France 1975–1976 (New York: Picador, 2003), p.260. In classical political theory the nomos referred to thematrix of conventions through which political and ethicalconduct was sanctioned, endorsed and accepted. The nomosperformed three core functions: (1) the assignment of plac-es; (2) the nomination of the powers that derive from them;and (3) the delineation of their perimeters. This brings intofocus the active sense of geo-graphing required by Agam-ben’s discussion, because the nomos may be seen as a para-digmatic performance of space: ‘paradigmatic’ because it isaccepted, taken for granted, and so serves as a template forpolitical-moral ordering (ordnung); and ‘performance’ be-cause it is activated as a concrete ‘taking place’ or localiza-tion (ortung). The fulcrum of Agamben’s argument is thatthe ordering of space that constitutes the nomos is producednot only by ‘the determination of a juridical and territorialordering (of an Ordnung and an Ortung)’ but, above all, by‘a “taking of the outside”, an exception (Ausnahme)’: Homosacer, p. 19. For further discussion, see Claudio Minca,‘The return of the camp’, Progress in Human Geography,29 (2004), pp. 405–412. It should be noted, however, thatAgamben’s treatment of the camp as a ‘paradigm’ in thesense of exemplar involves him in a series of logical, self-referential difficulties that pose serious problems for his(crucial) claim about the generalization of the camp: seeNorris, ‘Exemplary exception’, pp. 273–278. Agamben pro-vides his own gloss on paradigms in ‘What is a paradigm?’,European Graduate School, Saas-Fee, Switzerland, August2002, at http://www.egs.edu/faculty/agamben/agamben-what-is-a-paradigm-2002.html.

9. Agamben, State of Exception, pp. 3–4; Ulrich Rauff, ‘An in-terview with Giorgio Agamben: life, a work of art withoutan author: the state of exception, the administration of disor-

der and private life’, German Law Journal, 5 (2004). Afterthese comments were published, a second iconic siteemerged: Abu Ghraib prison, west of Baghdad, where fromAugust 2003 men, women and boys captured during the USinvasion of Iraq were imprisoned. I discuss the connectionsbetween these and other sites in ‘Vanishing points: law, vio-lence and exception in the global war prison’, in Derek Gre-gory and Allan Pred (eds) Violent Geographies: Fear, Ter-ror and Political Violence (New York: Routledge, 2007),pp. 317–344.

10. Michael Dillon, ‘Correlating sovereign and biopower’, inJenny Edkins, Véronique Pin-Fat and Michael J. Shapiro(eds) Sovereign Lives: Power in Global Politics (New York:Routledge, 2004), pp. 41–60, 56. Cf. ‘The sovereign is thepoint of indistinction between violence and law, the thresh-old on which violence passes over into law and law passesover into violence’: Agamben, Remnants, p. 32.

11. Gillian Rose, ‘Performing space’, in Doreen Massey, JohnAllen and Philip Sarre (eds) Human Geography Today(Cambridge: Polity Press, 1999), pp. 247–259.

12. Agamben, Homo Sacer; State of Exception, pp. 2, 22; for acomprehensive list of National Emergencies see Harold Re-lyea, ‘National Emergency Powers’, Congressional Re-search Service, The Library of Congress, Washington, DC,15 September 2005.

13. Agamben, State of Exception, pp. 11–22. 14. This model (named for the Treaty of Westphalia that ended

the Thirty Years War in 1648) divides the world into sover-eign states that are responsible for their own laws; it regardsall states as equal before the law, requires all states to re-spect the legal existence of other states, and renders inviola-ble the territorial integrity of every state.

15. Kal Raustiala, ‘The geography of justice’, Fordham LawReview, 73 (2005), pp. 2501–2560; Peter Swan, ‘AmericanEmpire or Empires: alternative juridifications of the NewWorld Order’, in Amy Bartholemew (ed.), Empire’s Law(London: Pluto Press, 2006), pp. 137–160, 158 n. 35.

16. According to Austin, the sovereign has the authority to ‘ab-rogate the law at pleasure’. Prefiguring Schmitt’s dictum,Austin insisted that a sovereign who is bound to observe thelaw is no sovereign: ‘Supreme power limited by positivelaw is a flat contradiction in terms’. See John Austin, TheProvince of Jurisprudence Determined ed. by Wilfred E.Rumble (Cambridge: Cambridge University Press, 1995;first published in 1832), p. 254.

17. Amy Bartholemew, ‘Empire’s law and the contradictorypolitics of human rights,’ in Bartholomew (ed.) Empire’sLaw, pp. 161–189, 161–162. Feith was enlarging on an ex-traordinary sentence from the US National Defense Strategy(2005): ‘Our strength as a nation-state will continue to bechallenged by those who employ a strategy of the weak, us-ing international fora, judicial processes and terrorism’ (p.5). See US Department of Defense, Special Briefing, 18March 2005. For contrary views as to the importance of in-ternational law in counter-terrorism and the ‘war on terror’and its extensions, see Michael Byers, War Law: Interna-tional Law and Armed Conflict (London: Atlantic Books,2005); Helen Duffy, The ‘War on Terror” and the Frame-work of International Law (Cambridge: Cambridge Univer-sity Press, 2005).

18. The only other absolutely non-derogable rights are the rightnot to be enslaved and the right not to be prosecuted forsomething that was not an offence at the time it was com-mitted. See Lisa Hajjar, ‘Torture and the future’, Interven-tions: Middle East Report Online, May 2004; Joan Fitz-patrick, ‘Protection against abuse of the concept of “Emer-



gency”’, in Lawrence Henkin and John Lawrence Hargrove(eds) Human Rights: An Agenda for the Next Century(Washington, DC: American Society of International Law,1994).

19. ‘President discusses year-end accomplishments in Cabinetmeeting’, at http://www.whitehouse.gov/news/releases, 11December 2003; Philippe Sands, Lawless World: Americaand the Making and Breaking of Global Rules (London: Al-len Lane, 2005), p. xii.

20. Amy Kaplan, ‘Homeland insecurities: reflections on lan-guage and space’, Radical History Review, 85 (2003), pp.82–93: 91–92; idem., ‘Where is Guantánamo?’, AmericanQuarterly, 57 (2005), pp. 831–858, 832; Judith Butler, ‘In-definite detention’, in her Precarious Life: The Powers ofMourning and Violence (London and New York: Verso,2004), pp. 50–111: pp. 51, 56, 64; Michael Ratner, ‘TheGuantánamo prisoners’, in Rachel Meeropol (ed.), Ameri-ca’s Disappeared: Secret Imprisonment, Detainees and the‘War on Terror’ (New York: Seven Stories Press, 2005), pp.31–59, 33; Johan Steyn, ‘Guantánamo Bay: the legal blackhole’, 27th F.A. Mann Lecture, 25 November 2003; ScottMichaelsen and Scott Cutler Shershow, ‘The Guantánamo“Black Hole”: The law of war and the sovereign exception’,Middle East Report Online, 11 January 2004; Agamben,State of Exception, pp. 6, 86. See also Oliver Klemens,Jesko Fezer, Kim Forster and Sabine Horlitz, ‘Extra-territo-rial spaces and camps: judicial and political spaces in the“war on terrorism”’, in Anselm Franke, Rafi Segal and EyalWeizman (eds) Territories: Islands, Camps and OtherStates of Utopia (Berlin: KW – Institute for ContemporaryArt, 2003), pp. 22–28

21. Michael Hardt and Antonio Negri, Multitude: War and De-mocracy in the Age of Empire (New York: Penguin, 2004),pp. 5–10.

22. Carl Schmitt, The Nomos of the Earth in the InternationalLaw of the Jus Publicum Europaeum trans. Gary Ulmen(New York: Telos, 2003; first published in German in1950). My understanding of Schmitt has been facilitated byWilliam Rasch, ‘Human rights as geopolitics: Carl Schmittand the legal form of American supremacy’, Cultural Cri-tique, 54 (2003), pp. 120–147; Matti Koskeniemmi, ‘Inter-national law as political theology: how to read Nomos derErde?’, Constellations, 11 (2004), pp. 492–511; Agamben,Homo sacer, pp. 36–37.

23. Schmitt substitutes teleology for history; his account of a‘virtuous past’ in which war within Europe was subject torationalization and regulation is a projection of politicaltheology on to the plane of absolutism: Koskenniemi, ‘Inter-national law’, p. 499.

24. Agamben, Homo sacer, pp. 17–18 (emphasis added). 25. Achille Mbembe, ‘Necropolitics’, Public Culture, 15

(2003), pp. 11–40. Mbembe works with both Schmitt andAgamben to expose the conjunctions between colonial mo-dernity, sovereign power and what he calls ‘the work ofdeath’. He sometimes makes the conjuncture conditional:‘the colonies are the locus par excellence where the controlsand guarantees of judicial order can be suspended’; ‘the col-onies might be ruled over in absolute lawlessness’ (p. 24;emphases added). But the tenor of his argument is to treatcolonial power as synonymous with lawlessness, and thismeans that he cannot adequately register the ways in whichlaw and violence march hand in hand.

26. Rasch, ‘Human rights’, pp. 127–128; Peter Fitzpatrick,‘“Gods would be needed…”: American Empire and the ruleof (international) law’, Leiden journal of international law,16 (2003), pp. 429–466, 448. Richard Falk emphasizes that

international law has a contradictory constitution, operatingunder the sign of colonialism as an instrument of both ruleand resistance, ‘a Frankenstein that cannot be consistentlycontrolled by its inventors’: ‘Orientalism and internationallaw: a matter of contemporary urgency’, Arab World Geo-grapher, 7 (2004), pp. 103–116, 109. But as we will see, thelaw produces its own monsters too.

27. Rasch, ‘Human rights’, p. 130; Carl Schmitt, The Conceptof the Political, trans. by George Schwab (Chicago, IL: Uni-versity of Chicago Press, 1996; first published in German in1932) p. 54; Andrew Norris, ‘“Us and Them”: the politics ofAmerican self-assertion after 9/11’, Metaphilosophy, 35(2004), pp. 249–227; see also Matt Coleman, ‘The namingof “Terrorism” and evil “outlaws”: geopolitical place-mak-ing after 11 September’, Geopolitics, 8 (2004), pp. 87–104.

28. Paul Gilroy, ‘“Where ignorant armies clash by night”: ho-mogeneous community and the planetary aspect’, Interna-tional Journal of Cultural Studies, 6 (3) (2003), pp. 261–276, 263; see also Derek Gregory, The Colonial Present:Afghanistan, Palestine, Iraq (Oxford: Blackwell, 2004).

29. Anne Orford, ‘The destiny of international law’, LeidenJournal of International Law, 17 (2004), pp. 441–476, 444;Costas Douzinas, The End of Human Rights (Oxford: Hart,2000), p. 329; idem., ‘Humanity, military humanism and thenew moral order’, Economy and Society, 32 (2003), pp.159–183; Hardt and Negri, Multitude, pp. 9, 22.

30. Robert Cover, ‘Violence and the word’, Yale Law Journal,95 (1986), pp. 1601–1629; Nasser Hussain, ‘Towards a ju-risprudence of emergency: colonialism and the rule of law’,Law and Critique, 10 (1999), pp. 93–115; idem., The Juris-prudence of Emergency: Colonialism and the Rule of Law(Ann Arbor: University of Michigan Press, 2003).

31. Louis Pérez, Cuba Between Empires, 1878–1902 (Pitts-burgh: University of Pittsburgh Press, 1983), pp. 55–56;Ada Ferrer, Insurgent Cuba: Race, Nation and Revolution1868–1898 (Chapel Hill: University of North CarolinaPress, 1999); W. Joseph Campbell, ‘Not likely sent: theRemington-Hearst “telegrams”’, Journalism and MassCommunication Quarterly, 77 (2000), pp. 405–422; DanielRoss, Violent Democracy (Cambridge: Cambridge Univer-sity Press, 2004), p. 128.

32. The US invoked these provisions to support its military in-terventions in 1906, 1912, 1917 and 1920. The PlattAmendment was abrogated in 1934 when a new treaty wassigned between the US and Cuba, but this did not affect thelease of Guantánamo.

33. Louis Pérez, Cuba under the Platt Amendment, 1902–1934(Pittsburgh: University of Pittsburgh Press, 1986); Alfred deZayas, ‘The status of Guantánamo and the status of the de-tainees’, Douglas Mc.K. Brown Lecture, University of Brit-ish Columbia, November 2003; Kaplan, ‘Where isGuantánamo?’, p. 836.

34. Minutes of the National Security Council meeting, 20 Octo-ber 1962, at the Avalon Project at Yale Law School, http://www.yale.edu/lawweb/avalon; ‘U.S. Military: StrengthThrough Flexibility’, Remarks by James H. Webb, NationalPress Club, Washington, DC, 13 January 1988; de Zayas,‘The status of Guantánamo’. The initial camps for Haitianrefugees were set up around radio antennas on the south sideof the base and identified by radio call signs (Camp Alphathrough Camp Golf); later camps were set up on the northside of the base and given call signs from the opposite endof the phonetic alphabet (including Camp X-Ray).

35. This is not a partisan conclusion. In December 2003 the USCourt of Appeals for the Ninth Circuit concluded that sincethe Cuban revolution the US government ‘has purposely

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acted in a manner directly inconsistent with the terms of theLease and the continuing Treaty’ and ‘has used the Base forwhatever purposes it deemed necessary or desirable’. Gh-erebi v. Bush, 35.2F.3d, 18072–18073 (9th Cir., 2003). TheCourt further argued that these actions have a direct bearingon sovereignty over Guantánamo: see below, pp. 413–414.

36. Kaplan, ‘Where is Guantánamo?’, pp. 832, 836; cf. Agam-ben, State of Exception, p. 48, who describes the state of ex-ception as both ‘an emptiness and standstill of law’ (empha-sis added).

37. Fleur Johns, ‘Guantánamo Bay and the annihilation of theexception’, European Journal of International Law, 16(2005), pp. 613–635, 614.

38. Christiane Wilke, ‘War vs. Justice: Terrorism cases, enemycombatants and political justice in US courts’, Politics andSociety, 33 (2005), pp. 637–669, 62; emphasis added.

39. Habeas corpus has been described as ‘the fundamental in-strument for safeguarding individual freedom against arbi-trary and lawless state action’ (Harris v. Nelson, 394 U.S.286, 290–291 (1969)), but its genealogy is more complicat-ed and contradictory than this liberal reading implies: see,e.g. Husain, ‘The “Writ of Liberty” in a regime of conquest:Habeas corpus and the colonial judiciary’, in his Jurispru-dence, ch. 3.

40. Neil Smith argues that the ‘liminal legal geography’ ofGuantánamo derives from the legal script written for PuertoRico, another spoil of the Spanish-American War. In 1901the US Supreme Court found that ‘whilst in an internationalsense P[u]erto Rico was not a foreign country … it was for-eign to the United States in a domestic sense’. This decisionforms part of a series known as the Insular Cases (1901–1922) that addressed the extension of constitutional provi-sions to territories where the United States exercises juris-diction and control rather than sovereignty. Although thebase was leased and not annexed, the Insular Cases haveplayed a significant role in the juridification of Guantána-mo, but they have been invoked in support of as well asagainst the rights of the detainees. See Neil Smith, The End-game of Globalization (New York: Routledge, 2005) pp.167–169; Kaplan, ‘Where is Guantánamo?’, pp. 837, 841–845.

41. ‘Detention, treatment and trial of certain non-citizens in thewar against terrorism’, Military Order, 13 November 2001;‘Possible Habeas jurisdiction over aliens held in Guantána-mo Bay, Cuba’, Memorandum from Patrick F. Philbin andJohn C. Yoo, Deputy Assistant Attorneys General, US De-partment of Justice, to William J. Haynes II, General Coun-sel, US Department of Defense, 28 December 2001: both re-printed in Karen J. Greenberg and Joshua L. Dratel (eds) TheTorture Papers: The Road to Abu Ghraib (Cambridge: Cam-bridge University Press, 2005), pp. 25–28; 29–37; Transcriptof interview with Bradford Berenson, PBS Frontline, 14 July2005. David Bowker, a State Department lawyer, confirmedthe determination of the Vice-President to find ‘the legalequivalent of outer space – a lawless universe … where de-tainees would have no legal rights and US courts would haveno power to intervene’: Michael Isikoff and Stuart Taylor,‘The Gitmo Fallout’, Newsweek, 17 July 2006.

42. Gherebi v. Bush, 35.2F.3d, 18060, 18067–18069 (9th Cir.,2003); see also Raustalia, ‘Geography of justice’, pp. 2535–2542. Raustalia notes that a similar conclusion may bedrawn from the lease’s assignment of ‘complete control andjurisdiction’ over Guantánamo to the United States; in hisview, ‘complete’ implies a ‘special sort of control’ fullyconsistent with the assignment of temporary sovereignty tothe United States (p. 2541).

43. Rasul v. Bush, 321F.3d, 1134 (S. Ct., 2004). The SupremeCourt’s landmark ruling was subsequently challenged bythe Detainee Treatment Act (2005) that, inter alia, limitedjurisdiction to the validity of the decision to detain a non-citizen as an ‘enemy combatant’; it also reaffirmed that ‘Forthe purposes of this section, the term “United States”, whenused in a geographic sense … does not include the UnitedStates Naval Station, Guantánamo Bay, Cuba’. (see below,p. 416).

44. Butler, ‘Indefinite detention’, pp. 58, 62; Johns, ‘Guantána-mo Bay’, radicalizes this interpretation: for her, Guantána-mo Bay is ‘more cogently read as the jurisdictional outcomeof attempts to domesticate the political possibilities occa-sioned by the experience of exceptionalism’. The regime atGuantánamo Bay, so she suggests, ‘is dedicated to produc-ing experiences of having no option, no doubt and no re-sponsibility’.

45. Kaplan, ‘Where is Guantánamo?’ p. 837.46. Butler says much less about this second imperative, though

she does acknowledge that the withdrawal of legal protec-tions from the prisoners and their indefinite detention are ef-fected through their constitution as ‘less than human’: pp.75–76, 98. Johns is silent on the question.

47. This argument rests on the claim that the Geneva Conven-tions contain within themselves the contingent circumstanc-es of their formulation, but this is precisely the grounds onwhich Cuba seeks to revoke the lease of Guantánamo Bay:it too was drawn up in contingent circumstances that nolonger obtain. The United States unilaterally disavows thecircumstances in the first case and upholds them in the sec-ond. In doing so, it also follows Schmitt’s claim that ‘irregu-lar combatants’ and changes in the apparatus of war bothplace considerable pressure on the framework of interna-tional law: William Scheuerman, ‘Carl Schmitt and the roadto Abu Ghraib’, Constellations, 13 (2006), pp. 108–124,118–121.

48. Rose, Guantánamo, p. 30; ‘Application of treaties and lawsto al Qaeda and Taliban detainees’, Draft memorandum forWilliam J. Haynes III, General Counsel, Department of De-fense, from John Yoo (Deputy Assistant Attorney General)and Robert Delabunty (Special Counsel), 9 January 2002;‘Application of treaties and laws to al Qaeda and Talibandetainees’, Memorandum for Alberto Gonzales, Counsel tothe President, and William J. Haynes III, General Counsel,Department of Defense, from Department of Justice, 22 Jan-uary 2002; ‘Comments on your paper on the Geneva Con-ventions’, Memorandum for Counsel to the President, fromWilliam H. Taft IV, Legal Adviser, Department of State, 2February 2002; ‘Humane treatment of al Qaeda and Talibandetainees’, Memorandum from the President, 7 February2002: in Greenberg and Dratel (eds) Torture Papers, pp.38–79, 67, 69; pp. 81–117, 102, 129, 134. In the Draft mem-orandum it was conceded that ‘there remains the distinctquestion whether such determinations would be valid as amatter of international law’ but, in a passage deleted fromthe final version of 22 January, the authors had insisted thatit would be ‘implausible’ to claim ‘that all obligations im-posed by the Geneva Conventions are absolute and that non-performance is never excusable’ (p. 69).

49. For reviews of these determinations see Kenneth Watkins,‘Warriors without rights? Combatants, unprivileged bellig-erents and the struggle over legitimacy’, Occasional Paper,Program on Humanitarian Policy and Conflict Research,Harvard University, winter 2005; de Zayas, ‘The status ofGuantánamo’; G.H. Aldrich, ‘The Taliban, Al Qaeda andthe determination of illegal combatants’, American Journal



of International Law, 96 (2002), pp. 891–898. When Com-batant Status Review Tribunals were finally established, therecord of their proceedings confirmed Butler’s characteriza-tion. Defendants were told that the tribunals followed USlaw but legal representation was not necessary because theywere not legal proceedings. When one defendant repeatedlyraised the issue of international law, he was told: ‘I don’tcare about international law. I don’t want to hear the words“international law” again. We are not concerned with inter-national law’. See Guantánamo and Beyond: The ContinuedPursuit of Unchecked Executive Power (Amnesty Interna-tional, 13 May 2005), pp. 54–55.

50. See David Rose, Guantánamo: America’s War on HumanRights (London: Faber and Faber, 2004); Gregory, ColonialPresent, p. 66.

51. Butler, ‘Indefinite detention’, p. 77. See also Naomi Klein,‘The true purpose of torture’, Guardian, 14 May 2005, whosuggests that the Department of Defense released its photo-graphs of caged prisoners at Guantánamo in order to con-firm the absolutism of American power: to intimidate – toterrorize – not only individuals but the collective will to re-sist. In releasing the photographs, however, the Pentagonwas hoist on its own petard. It now complains that the mediacontinue to use the stock images of the defunct Camp X-Ray to illustrate contemporary conditions at Guantánamo.

52. Tim Golden and Dan Van Natta Jr, ‘US said to overstatevalue of Guantánamo detainees’, New York Times, 21 June2004; Rose, Guantánamo, p. 42; Michelle Faul, ‘Gitmo de-tainees say they were sold’, Associated Press, 31 May 2005;Mark Denbeaux, Joshua Denbeaux and ‘The Guantánamodetainees: the Government’s story’ at law.shu.edu/news/Guantánamo_report_final_2_08_06.pdf, May 2005.

53. Judith Butler, Bodies that Matter: on the Discursive Limitsof ‘Sex’ (New York: Routledge, 1993), p. 3.

54. Nigel Rodley, ‘Looking-glass war’, Index on Censorship(2005), pp. 54–61: 55; Butler, Precarious life, pp. 80–81. Itis exactly this space that the Supreme Court sought to closein its majority ruling on 29 June 2006. It found that the Pres-ident acting as Commander-in-Chief has no authority tocontravene the Uniform Code of Military Justice nor the in-ternational law of war that it incorporates, and determinedthat Common Article 3 (common to all four Geneva Con-ventions) applies to anyone captured in a military conflict:thus torture and cruel, inhuman and degrading treatment areexpressly forbidden by law. Hamdan v. Rumsfeld, 415 F.3d33 (S. Ct., 2006).

55. J.M. Coetzee, Waiting for the Barbarians (New York: Vin-tage, 2000; first published in 1980), p. 12.

56. Joseph Margulies, Guantánamo and the Abuse of Presiden-tial Power (New York: Simon & Schuster, 2006), pp. 26–27, 31, 39–40, 121; Mark Benjamin, ‘Torture teachers’, Sa-lon.com, 29 June 2006.

57. Corine Hegland, ‘Who is at Guantánamo Bay?’, ‘Guantána-mo grip’, and ‘Empty evidence’, all in National Journal, 3February 2006.

58. If this makes Guantánamo a ‘third space’, it is also a power-ful reminder that such spaces, however transgressive theymay be, are not inherently liberating.

59. ‘Standards of conduct for interrogation under 18 USC §§2340–2340A’, Memorandum for Alberto Gonzales, Coun-sel to the President, from Jay S. Bybee [written by JohnYoo], Assistant Attorney General, Department of Justice, 1August 2002; Memorandum for Alberto Gonzales, Counselto the President, from John Yoo, Deputy Assistant AttorneyGeneral, Department of Justice, 1 August 2002: in Green-berg and Dratel (eds), Torture Papers, pp. 172–217, 218–

222: 202–203. The second memorandum did not promisethe President complete absolution because ‘it would be im-possible to control the actions of a rogue (sic) prosecutor orjudge’ (p. 218). These determinations were repudiated assoon as the memorandum became public in June 2004, andwas conveniently replaced by new guidelines just one weekbefore Congressional hearings on Gonzales’ nomination asAttorney General. In those meetings, however, Gonzales re-affirmed that ‘there is no legal obligation under [the Con-vention Against Torture] on cruel, inhuman or degradingtreatment with respect to aliens overseas’. For commentar-ies, see Tom Engelhardt, ‘George Orwell … meet FranzKafka’, at http://www.tomdispatch.com, 13 June 2004;David Cole, ‘What Bush wants to hear’, New York Reviewof Books, 17 November 2005; Lisa Hajjar, ‘Torture and thelawless “New Paradigm”’, Interventions: Middle East Re-port Online, at http://www.merip.org/mero, 9 December2005.

60. Greenberg and Dratel (eds), Torture Papers, pp. 228, 223,237; ‘Statement for the record: Office of General Counselinvolvement in interrogation issues’, Memorandum fromAlberto J. Mora, General Counsel of the Navy to Vice-Ad-miral Albert Church, Inspector General, Department of theNavy, 7 July 2004;

61. Alfred W. McCoy, A Question of Torture: CIA Interroga-tion from the Cold War to the War on Terror (New York:Metropolitan Books, 2006), pp. 8, 35, 46. Amnesty Interna-tional describes these techniques as producing ‘as grave anassault on the human person as more traditional techniquesof physical torture’ (pp. 56–57) and in its judgement againstthe use of these techniques by British security forces inNorthern Ireland in 1977 the European Human Rights Com-mission described them as ‘a modern system of torture’ (p.57). The parallels with Guantánamo are exact: see pp. 125–131.

62. Mark Bowden, ‘The dark art of interrogation’, AtlanticMonthly, October 2003; Elaine Scarry, The Body in Pain:the Making and Unmaking of the World (New York: OxfordUniversity Press, 1985), p. 4. ‘As the content of one’s worlddisintegrates,’ she adds, ‘so the content of one’s languagedisintegrates: as the self disintegrates, so that which wouldexpress and project the self is robbed of its sources and sub-ject’ (p. 35).

63. Ibid., pp. 12–14. For a brilliant reflection on these mattersthat engages directly and sympathetically with Agamben,see Jenny Edkins, ‘Testimony and sovereign power afterAuschwitz: Holocaust witnesses and Kosovo refugees’, inher Trauma and the Memory of Politics (Cambridge: Cam-bridge University Press, 2003), pp. 175–214.

64. ‘Request for approval of counter-resistance strategies’,Memorandum for Commander, Joint Task Force 170 fromLTC Jerald Phifer, Director J2, 11 October 2002; ‘Counter-resistance techniques’, Memorandum for Chairman of theJoint Chiefs of Staff from General James Hill, US SouthernCommand, 25 October 2002; Memorandum for Secretary ofDefense from William J. Haynes II, General Counsel, De-partment of Defense, 27 November 2002; Draft WorkingGroup Report on Detainee Interrogations in the Global Waron Terrorism, 6 March 2003; Working Group Report on De-tainee Interrogations in the Global War on Terrorism, 4April 2003; ‘Counter-resistance techniques in the war onterrorism’, Memorandum from Secretary of Defense for theCommander US Southern Command, 16 April 2003, inGreenberg and Dratel (eds), Torture Papers, pp. 228, 223,237, 241–285, 265–266, 286–359, 291, 360–365, 365.

65. See, David Rose, ‘How we survived jail hell’, Observer, 14

DEREK GREGORY


March 2004; Severin Carrell, ‘US guards at Guantánamotortured me, says UK man,’ Independent, 24 April 2005;‘Detention in Afghanistan and Guantánamo Bay: statementof Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed’, Center forConstitutional Rights, New York, 26 July 2004; Guantána-mo and Beyond; ‘Testimony of Guantánamo detainee Ju-mah al-Dossari’, Amnesty International, 7 November 2005;Mark Oliver, ‘“They couldn’t take away my dignity”’,Guardian, 18 November 2005; Moazzam Begg and VictoriaBrittain, Enemy Combatant: A British Muslim’s Journey toGuantánamo and Back (New York: Free Press, 2006); Re-port on Torture and Cruel, Inhuman and Degrading Treat-ment of Prisoners at Guantánamo Bay, Cuba (New York:Center for Constitutional Rights, July 2006).

66. Dana Priest and Scott Higham, ‘At Guantánamo, a prisonwithin a prison’, Washington Post, 17 December 2004;Douglas Jehl, ‘Classified report warned on CIA’s tactics ininterrogation’, New York Times, 9 November 2005; BrianRoss and Richard Esposito, ‘CIA’s harsh interrogation tac-tics described’, ABC News, 18 November 2005. The Direc-tor of the CIA insisted that none of these techniques consti-tuted torture, but an editorial in the Washington Post, asked:‘If an American pilot is captured in the Middle East, thenbeaten, held naked in a cold cell and subjected to simulateddrowning, will [CIA Director] Goss say that he has not beentortured?’ ‘Director for Torture’, Washington Post, 23 No-vember 2005.

67. ‘Guantánamo: a history of torture’, transcript of interviewwith Alfred McCoy at http://www.informationclearing-house.info/article13597.htm.

68. Seymour Hersh, Chain of Command: The Road from 9/11 toAbu Ghraib (New York: HarperCollins, 2004), p. 41; for afull discussion, see Gregory, ‘Vanishing points’.

69. Josh White, ‘President relents, backs torture ban’, Washing-ton Post, 16 December; Charlie Savage, ‘Bush could bypassnew torture ban’, Boston Globe, 4 January 2006. UntilGeorge W. Bush assumed power, signing statements hadbeen issued 322 times since 1817, but in his first term alone,Bush issued them 435 times. He has used them most fre-quently to assert the unsurpassable power of ‘the unitary ex-ecutive’ over that of both the legislature and the judiciary:Philip W. Cooper, ‘George W. Bush, Edgar Allan Poe andthe use and abuse of Presidential signing statements’, Presi-dential Studies Quarterly, 35 (2005), pp. 515–532; Jennifervan Bergen, ‘The unitary executive’, Counterpunch, 12 Jan-uary 2006.

70. Josh White and Carol Leonnig, ‘US cites exception in tor-ture ban’, Washington Post, 3 March 2006.

71. Rasul v. Bush, 321 F3.d 1134 (S. Ct., 2004); Department ofthe Army, Inspector General, Detainee Operations Inspec-tion, 21 July 2004, in Greenberg and Dratel (eds), TorturePapers, pp. 630–907, 688, 707–708; Emily Bazelon, ‘FromBagram to Abu Ghraib’, Mother Jones, March/April 2005;Tim Golden and Eric Schmitt, ‘A growing Afghan prison ri-vals bleak Guantánamo’, New York Times, 26 February2006. Bagram also housed one of the CIA’s secret prisons ina cluster of metal shipping containers; it replaced the infa-mous ‘Salt Pit’ in an abandoned brick factory north of Ka-bul: Dana Priest and Barton Gellman, ‘US decries abuse butdefends interrogations’, Washington Post, 26 December2002; Dana Priest, ‘CIA avoids scrutiny of detainee treat-ment’, Washington Post, 3 March 2005; idem., ‘CIA holdsterror suspects in secret prisons’, Washington Post, 2 No-vember 2005. But coercive interrogations were also used bythe US military at Bagram, including prolonged standing,hooding and blindfolding, stress positions, intimidation by

attack dogs, sleep deprivation, and sexual abuse. The deathsof two prisoners in military custody, who had been hung inchains from the ceiling of their cells, were acknowledged tohave been homicides: The Threat of a Bad Example (Am-nesty International, AMR 51/114/2003, 19 August 2003);Suzanne Goldenberg and James Meek, ‘Papers reveal Ba-gram abuse’, Guardian, 18 February 2005; McKenzie Funk,‘The man who has been to America’, Mother Jones, Sep-tember/October 2006.

72. Tom Engelhardt, ‘Into the shadows’, at http://www.Tom-Dispatch.com, 5 April 2004; Dana Priest and Joe Stephens,‘Abu Ghraib is just the most notorious of a network of de-tention centers’, Washington Post, 23 May 2004; JonathanSteele, ‘A global gulag to hide the war on terror’s dirty se-crets’, Guardian, 14 January 2005; Douglas Jehl, ‘Pentagonseeks to transfer more detainees from base in Cuba’, NewYork Times, 11 March 2005; Adrian Levy and Cathy Scott-Clark, ‘“One huge US jail”’, Guardian, 19 March 2005;Josh White and Robin Wright, ‘Afghanistan agrees to ac-cept detainees’, Washington Post, 5 August 2005; TimGolden, ‘US says it fears detainee abuse in repatriation’,New York Times, 30 April 2006; Gregory, ‘Vanishingpoints’.

73. Dana Priest, ‘Long-term plan sought for terror suspects’,Washington Post, 2 January 2005; Julian Borger, ‘US planspermanent Guantánamo jails’, Guardian, 3 January 2005;David Stout, ‘CIA detainees sent to Guantánamo’, NewYork Times, 6 September 2006; Dan Eggen and DafnaLinzer, ‘Secret world of detainees grows more public’,Washington Post, 7 September 2006.

74. Neil MacMaster, ‘Torture: from Algiers to Abu Ghraib’,Race and Class, 46 (2) (2004), pp. 1–20; Lesley Gill, TheSchool of the Americas: Military Training and PoliticalViolence in the Americas (Durham, NC: Duke UniversityPress, 2004); Jennifer Harbury, Truth, Torture and theAmerican Way: The History and Consequences of US In-volvement in Torture (Boston, MA: Beacon Press, 2005).

75. Hence ‘Guantánamo is both a shameful secret and a publicemblem of power’: Susan Willis, ‘Guantánamo’s symboliceconomy’, New Left Review, 39 (2006), pp. 123–131, 123.Its partial visibility also distracts the public gaze from whathappens at other Guantánamos, such as Bagram, and at theCIA’s black sites.

76. Margulies, Guantánamo, p. 45. Instrumentalism is not con-fined to the Bush administration, and neo-liberalism andneo-conservatism display the same Janus face to the law. Onthe one side, they consistently disparage the law (the appealto ‘the unitary executive’ beyond juridical oversight, the as-sault on ‘activist judges’, and the clarion call for ‘de-regula-tion’). On the other side they assiduously write new lawsthat restrict democratic politics, roll back human rights andreify the free market.

77. Julian Reid, ‘The biopolitics of the War on Terror’, ThirdWorld Quarterly, 26 (2005), pp. 237–252, 241; see alsoTimothy Brennan and Keya Ganguly, ‘Crude wars’, SouthAtlantic Quarterly, 105 (2006), pp. 19–35, 25–28.

78. Kaplan, ‘Guantánamo’, pp. 851–854. Humphreys offers amore optimistic view of judicial intervention – which, as hesays, is strikingly absent from Agamben’s account – but hetoo concludes that, in the cases decided by the SupremeCourt, this has not been ‘truly decisive’: Stephen Hum-phreys, ‘Legalizing lawlessness: On Giorgio Agamben’sState of Exception’, European Journal of International Law,17 (2006), pp. 677–687, 687.

79. Hamdan v. Rumsfeld, 415 F.3d 33 (S. Ct., 2006); WilliamBranigin, ‘Supreme Court rejects Guantánamo war crimes



trials’, Washington Post, 29 June 2006; Dana Milbank, ‘It’sBush’s way or the highway on Guantanamo Bay’, Washing-ton Post, 12 July 2006;

80. Jonathan Weisman, ‘Battle looms in Congress over militarytribunals’, Washington Post, 13 July 2006; Kate Zernik,‘White House prods Congress to curb detainee rights’, NewYork Times, 13 July 2006; Pauline Jelinek, ‘Army banssome interrogation techniques’, Washington Post, 6 Sep-tember 2006; Julian Barnes, ‘CIA can still get tough on de-tainees’, Los Angeles Times, 8 September 2006; Kate Zernikand Neil Lewis, ‘Plan for tribunals would hew to the first se-

ries’, New York Times, 7 September 2006; Adam Liptak,‘Interrogation methods rejected by military win Bush’s sup-port’, New York Times, 8 September 2006.

81. Kate Zernik, ‘Military lawyers urge protections for detain-ees’, New York Times, 14 July 2006; Jonathan Weisman,‘Senators gain momentum to change military tribunal sys-tem’, Washington Post, 15 July 2006.

82. Howard Ehrlich, ‘Why the black flag?’ in his Reinventing An-archy, Again (San Francisco, CA: AK Press, 1996), pp. 31–32.

Documents

THE BLACK FLAG: GUANTNAMO BAY AND THE SPACE OF EXCEPTION THE