Post 9/11, America”Ÿs political and legal perspectives are evolving constantly to meet the ongoing war on terror. Shortly after the attacks on the World Trade Center, Vice President Dick Cheney stated, ”It is a mean, nasty, dangerous, dirty business out there. And we have to operate in that arena” (Russert, 2003). Cheney implies, to catch an enemy, we must act and respond in a like manner. The proximity to “žterror”Ÿ practices alters the United State”Ÿs system of justice and law with policies that challenge the Constitution and the Geneva Convention. The political and legal discourses the U.S. has developed to battle the enemy, are the same principles the U.S. cabinet wishes to destroy: Lawlessness, human rights violations, non participatory governments. One of the main causes of continued human rights and legal erosion is the anti-terror tactics developed by the emboldened Executive branch. Here, I argue the structure of the U.S. constitutional and international law, becomes subordinated by broad Executive powers and signing statements, with reluctant support by the Judicial and Legislative bodies. Furthermore, this has created prisons in Cuba, Iraq, and Afghanistan that are outside the sphere of law: They are what Giorgio Agamben calls ”spaces of exception” (Butler 62). They are areas in which prisoners”Ÿ rights are suspended, thereby subjecting the prisoners to inhumane, degrading treatment. In addition, the relation of these two arguments supplement the broader cultural discourse of ”us versus them”Ÿ. Despite the large constituency supporting this ideology; there is a strong political-legal movement for change.
The ”Us versus Them” discernment, manufactured by media and politicians, recreates the west as civil, honorable, and Christian (us), compared with the terrorist: uncivilized, backwards, and Muslim (them). These perceptions and spaces of production have ripped holes in our political-legal structure, and these holes are surrounded by barbed wire fences. The sovereign, in this case the President, suspends fundamental laws in the name of national security. SGT. Ken Davis, stationed at Abu Ghraib said, ”You start looking at these people as less than human, and you start doing things to them you would never dream of. And that”Ÿs where it got scary” (Taxi, 2007). The dehumanizing practices reinforce themselves by categorizing ”us” and ”them”; we the civilized, and they, the barbarians. This is what Edward Said calls imagined geographies, and the military tribunals created by the Executive branch, supplement this imagined geography. As well as analyzing the governmental branches”Ÿ use of imagined geographies and spaces of exception, I will examine the tools the Executive branch has implemented. The space of the military court is an extension of the space of exception while also being an example of the role of the judge (us) and the judged (them).
In a rare occurrence, a detainee is brought out of the enclosure of the Executive branch into the highest court in the nation. Here, the Supreme Court draws them outside the barbed wire fence and considers their fundamental rights. Several Supreme Court justices have agreed the detainees have rights, but these rights are severely curtailed, and are not enforced. I will examine these cases in an attempt to broaden the discussion around those still locked-in military prisons. Abu Ghraib, Guantanamo, and other detention centers around the world, are areas in which the detainees become excluded from and abandoned by law and humanity. These sites of raw sovereign power are spaces of exception. These spaces of exception create an atmosphere whereby prisoners are outside the reach of American and international laws. Most significantly, the detainees are displaced into an area where habeas corpus does not exist. Historical point of view
When the framers of the constitution conceived the United States, they wanted to develop a governmental system which spread out the power to three separate entities. Each governmental body has its own framework of rules and inherent powers. Article 1 of the U.S. constitution enumerated the Legislative branch. This supplied the senate and house with the power to create laws. Article 2 of the constitution enumerated the Executive branch. This branch houses the President (commander of armed forces), his cabinet and agencies. The Judicial branch, enumerated in Article 3 of the constitution, consists of the lower federal courts, and the Supreme Court. Each branch has checks and balances over the other governmental bodies, theoretically leading to an arrangement which circumvents complete rule of one person or branch. Each branch has its role within the U.S. governmental structure. The current war on terror supplies the Executive more authority than any other branch. This is due to the states of emergency and other tools implemented by the Executive branch. In states of emergency (or exception), habeas corpus is subject to revocation.
Habeas corpus is a common law practice which the U.S. constitution inherited from England. It is the fundamental law which supplies individuals with the mandate of due process and court trial. Created in the 14th Century, it protected individuals from the complete authority of the King. Before codifying habeas corpus in English law, the sovereign king could detain anyone indefinitely without charges or trial. It was not until 1679 under the Habeas Corpus Act did the practice become codified in English law. Until the law passed, there was extreme flexibility in its practice and form (Robertson, J). Currently, under U.S. law, it is legal to hold an ”unlawful enemy combatant” without a grant of habeas corpus. The exception of habeas corpus is not a new strategy, and finds its first precedent under Charles II”Ÿs rule. Sir Harry Vane and Rev. Hugh Peters (co-founder of Harvard University) were put on trial for treason in 1660 for involvement in the death of Charles I. Because of the unstable position of the country and prison system, a plan was devised to bring these prisoners to an island where habeas corpus did not exist. Here on this island, outside the rule of England, they could be legally detained indefinitely. George Bush the II has continued the tradition of Charles the II. He has authorized the creation of island prisons where the rule of law is no longer the rule of the land (Robertson, G 171).
In American policy the island prisons are both literal and figurative. They are literal because one space of exception is located at Guantanamo, Cuba. They are figurative because these island prisons are imagined geography. They are imagined because they are perceptual spaces isolating “žour”Ÿ space from “žtheirs”Ÿ. Edward Said describes imagined geographies and how they work in this way:
They work by multiplying partitions and enclosures that serve to demarcate ”the same” from ”the other”, at once constructing and calibrating a gap between the two by ”designating in one”Ÿs mind a familiar space which is “žours”Ÿ and an unfamiliar space beyond ”ours”Ÿ which is ”theirs”Ÿ”. (Gregory, 2007: 17). “Our”Ÿ space is perceived as lawful and democratic –rights are deemed as important. The ”others”Ÿ” space is wild, barbaric, backwards. Consequently, our rules should not apply to them. So, imagined geography used with media and political brainwashing blitzes convinces average Americans that Muslims are terrorists. Or more eloquently stated by the Israeli Ambassador to the U.S. Dan Gillerman, ”While it may be true — and probably is — that not all Muslims are terrorists, it also happens to be true that nearly all terrorists are Muslim” (2006). Adding to the disorientation of the “žother”Ÿ is the foreign law system itself. There is a long history of indigenous peoples fighting for their legal rights (e.g., obtaining legal rights after the colonial era). In Matthew Sparke”Ÿs article ”Territories of Tradition: Cartographic Beginnings and the Narration of Nation”, he gives account of the first nation”Ÿs people of British Columbia in a legal battle with the Canadian government (colonizer). In Sparke”Ÿs article, he explains we have a socio-cultural group fighting for their legal rights within a western legal system. Sparke illustrates the complexities which the first nation peoples encountered while working within the western framework. Important evidence and testimony was thrown out in the trial because of its cultural and historical roots. The first nation people, like the U.S.-held detainees, had no part in putting the game together, the creation of its rules, and the appointments of the referees and umpires (Sparke, 2005; 14). However, the difference between these two peoples fighting within a foreign law space is the detainees are not given the rules because the U.S. makes them up as the go. The detainees are stuck within two foreign spaces. One is where they become less than human, the other an Anglo-Saxon structure of judicial justice. Both are imposed by force, strengthened by mistreatment and solidified by the United States of America.
Another tool of the Executive branch, which subordinates constitutional and international law, is the signing statement. The use of signing statements is not a new phenomenon. The first President on record issuing a singing statement was James Monroe in the early 1800″Ÿs. They were used primarily for public record until Reagan”Ÿs presidency in the 1980″Ÿs. A legal theory was developed which asserted signing statements could be used as a tool of the Executive branch. Instead of vetoing a law passed through the senate, the President can claim the law is unconstitutional and his branch is not bound to obey. Since President Bush II came into office in 2001, he has signed 157 statements challenging 1,100 provisions of federal law –more than any previous President in history (Green, 2008).
The use of signing statements by President Bush allows for new and broad interpretations of law and Executive power. Signing statements have three significant functions: to notify the public on how the President views the legislation and how it relates to the administration”Ÿs policy views; to guide and direct the organizations which fall under the Executive branch; and, most importantly, announces the Presidents”Ÿ view on the constitutionality of the legislation (Dellinger, 1993). The President has in effect, acquired the role of the judiciary and the legislative; he can now create laws and interpret them. Signing statements are important because, currently, our legal system does not know how to deal with them. They are inherently outside the sphere of law. When a law is passed by congress, it is sent to the President and then signed into law. When he signs the law is the moment he issues the signing statement. In relation to the Supreme Court, signing statements are beyond judicial review because, ”a specific victim of a law or policy, over whom courts have jurisdiction, must file a lawsuit for a question to get before the Supreme Court. But nobody has legal standing to sue over most of the important laws Bush challenged” (Savage, 2007; 241). The Executive is no longer fixed in the system of checks and balances. The Executive body has moved above the other branches because the President believes he has the power.
Congress”Ÿ Authorization for Use of Military Force (AUMF) on September 18, 2001, authorized the President to ”use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of 9/11. The broad power given to him by congress developed a ”wild west” mentality. In other words, President Bush adopted the persona of the head cowboy from Texas leading the pack to cleanse the world of terrorists. Osama Bin Laden, ”the evil doer”, the terror of the east, his bearded face plastered on posters reading ”dead or alive” in bold print. This mentality eventually created problems for the administration. The Abu Ghraib torture scandal hit the media with allegations of prisoner mistreatment, and Congress tried to cut back some of the Executive”Ÿs power.
In October 2004, Congress passed a law (H.R.4200) which required the Pentagon to ”retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing “žsecurity, intelligence, law enforcement, and criminal justice functions”Ÿ” (Savage, 2006). In Bush”Ÿs signing statement, he declared that as the commander and chief of the armed forces he was not bound to obey these requirements, and by extension, neither were they (Savage, 2007; 238). Amendment 1977, spearheaded by Republican nominee John McCain, in 2005 ordered, ”No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment” (McCain). Bush”Ÿs signing statement negated the ban, ”The Executive branch shall construe… the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary Executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power” (Bush). The President has effectively created a loophole in anti-torture legislation. The Executive branch can order torture whenever deemed necessary, thereby placing the ”unlawful enemy combatant” into a state of dehumanizing exception. The President justifies the breaking of laws and statutes in the name of national security. High ranking members in his cabinet believe the detainees, if released, will go back to killing ”innocents”. Judith Butler, in her book Precarious Life, believes these strategies suggest, ”[the] individuals are exceptional, that they may not be individuals at all, that they must be constrained in order not to kill, that they are effectively reducible to a desire to kill, and that regular criminal and international codes cannot apply to beings such as these” (2006; 78). The tools used to justify uses of torture in prisons continue to the heart of torture itself, its definition. The Geneva Convention states:
[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (CAT) John Yoo (former deputy Assistant Attorney General) sent Alberto Gonzales (former attorney general) a memo in August of 2002, which redefined torture as: Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.
Recreating the definition of torture recapitulates the imagined geographies of the ”civilizer” and the ”uncivilized”. It presents an imagined topography where the boundaries are blurred between severe interrogation practices and torture. In 2008, legislation is still not passing majority vote to develop a system of definition and legality of torture and interrogation techniques. The Supreme Court of the U.S. judged cases involving unlawful detainees, torture and habeas corpus. The Supreme Court”Ÿs judgment”Ÿs attempt to create legal boundaries and rights for detainees. Both governmental bodies have challenged the Executive in some fashion, but the success of their actions has yet to draw distinct lines in the sand.
Challenging the State and Space(s) of Exception
The two most significant Supreme Court cases that relate to indefinite detainment and due process are the cases of Hamdi V. Rumsfeld (2004), and Hamdan V. Rumsfeld (2006). Yaser Esam Hamdi (an American citizen) was seized by Northern Alliance soldiers in Afghanistan and turned over to the U.S. military. Hamdi was first detained in Guantanamo, and then transferred to a military base in Norfolk Virginia. A petition was filed by Hamdi”Ÿs father who was concerned that his son would be detained forever without a trial, due process, or charged with a crime. The Supreme Court held a plurality opinion, meaning they had less than majority support on the decision. Justice O”Ÿ Connor writes in the plurality opinion, ”Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized” (Hamdi V. Rumsfeld). The plurality agrees the detention is authorized, just not for the sole reason of interrogation. This is only in relation to the citizens of America, the others foreign nationals are still considered “žless than human”Ÿ. O”ŸConnor says detention is not punishment but simply a means of preventing ”the captured individual from serving the enemy” (Ibid). This goes back to Butler”Ÿs thoughts on the degradation of a human into nothing more than a killing machine.
On November 13, 2001, President George W. Bush issued a Presidential order entitled, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism. The order found that it was ”not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts”. It provided that ”any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission” and ”may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death” (ibid). Surprisingly, O”ŸConnor supports the corrupted use of evidence, ”to alleviate their uncommon potential to burden the Executive branch at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence” (Hamdi V. Rumsfeld). Hearsay is not usually accepted in a court of law. Not only is the integrity of the court violated in accepting hearsay, but that of the detainee as well. The plurality opinion believed the AUMF did authorize indefinite detention for the “žothers”Ÿ, but when an U.S. citizen is detained, he is allowed to hear evidence against him, obtain a charge, and seek rebuttal. Other opinions in this case assume different roles. Justice Ginsburg and Souter believe the AUMF does not authorize indefinite detention, and unless congress authorizes the suspension of habeas corpus (which has never been done officially) the detainee is entitled to be released. Justice Thomas believes indefinite detention, ”falls squarely within the Federal governments war power, and we lack the expertise and capacity to second guess that decision” (ibid). Ultimately, it is the Supreme Court”Ÿs decision to allow American citizens the right to habeas corpus petitions.
Hamdan V. Rumsfeld is a case which challenges the legality of the military tribunals set up by the Executive Power. Salim Ahmed Hamdan is a Yemeni who was captured by the Northern Alliance in Afghanistan and taken to Guantanamo. After several years in prison he was charged with conspiracy ”to commit….offenses triable by military commission”. On December 30, 2005, Congress passed the Detainee Treatment Act (DTA). Section 1005 E of that act provides, ”no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay”. This act stripped the jurisdiction of the court to hear any habeas corpus cases. Congress passed it in response to the pending case, Hamdan V. Rumsfeld. Fortunately, due to the language of the legislation, there was doubt about whether it referred to all new cases or those cases pending before the court. The majority of the Court believed this case does not fall under the act and therefore subject to judicial review. In a 5-3 ruling, they found President Bush”Ÿs military tribunals illegal under the Military Code of Justice, Geneva Conventions and were not authorized by the AUFM. Justice Stevens writing for the majority believed Common Article 3 of the Geneva conventions ”requires that Hamdan be tried by “žregularly constituted court affording all the judicial guarantees which are recognized as indispensible by civilized people”Ÿ…[and the military tribunal] the President has convened to try Hamdan does not meet those requirements” (Hamdan V. Rumsfeld).
Following the Hamdan ruling, Bush signed the Military Commissions act of 2006 (S.3930). This authorized the use of military tribunals for ”unlawful enemy combatants” and ”lawful enemy combatants”, thereby giving lawful jurisdiction to the military courts. This is the legislation which furthered both imagined geographies and spaces of exception. There are legal perceptions for ”unlawful” and ”lawful”, and whatever they are deemed by the authority is whatever space of exception they will be delegated to. This legislation effectively overturned the Hamdan ruling. It states, ”No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” (S.3930 Sec. 6), and, the ”President has the authority for the United States to interpret the meaning and application of the Geneva Conventions” (S.3930 Sec. 8). This clearly states that a prisoner can be detained indefinitely without trial or charge. If a prisoner is not classified, they can be detained forever. The President has the authority to interpret the Geneva Conventions on his terms; his Executive (sovereign) power remains intact. Since the jurisdiction has been removed from the Supreme Court, it is up to congress to legislate rights for the prisoners.
A congressional attempt to legislate uses of torture was passed by the house and senate in February of 2008 (H.R. 2082). The legislation, ”Prohibits any individual under the custody or control of an IC element, regardless of nationality or physical location, from being subject to any treatment or technique of interrogation not authorized by the U.S. Army Field Manual on Human Intelligence Collector Operations” (Sec. 327). The manual does not authorize the use of water boarding and other intensive interrogation techniques. On March 8, 2008, President Bush vetoed the bill. He argued, ”The bill Congress sent me would not simply ban one particular interrogation method, as some have implied. Instead, it would eliminate all the alternative procedures we’ve developed to question the world’s most dangerous and violent terrorists” (Rueters). This unmistakably reinforces the imagined geography of the U.S. and terrorist relations discussed earlier. The passage of the legislation in the Senate was on partisan grounds. If a democrat is elected President, it is possible that this legislation will be introduced and passed. Therefore, the Presidential election in 2008 could dramatically determine the future for the detainees throughout the world.
Some disagree with the notion that detention camps like Guantanamo are spaces of exception. Fleur Johns argues that Guantanamo has far too much legal activity in and about the camp to entertain the notion of a state of exception. American policy concerning torture is one of the most argued legal subjects in the world. Therefore, how could U.S. detention centers be outside the sphere of law? She argues that the military tribunal is an effective and standard process for judging and trying detainees (2005; 629). Since the exception of law rings the alarm bells for liberal lawyers and politicians, ”accordingly, the focus falls on less than 600 persons being abused in Cuba, rather than upon the millions subjected to endemic sexual, physical and substance abuse in prisons across the democratic world” (ibid). American prisons in Iraq, Afghanistan, and Cuba are consequently not the real spaces of exception. The real spaces of exception are the prisons of which we know nothing about.
As of 2007, 83,000 individuals have been detained in American prisons, 117 have died, 37 of those deaths ruled as homicides (Taxi, 2007). The United States government has implemented strategies which supplement the spaces of exception and imagined geographies. The separate bodies of the government played a hand in classifying the “žother”Ÿ. The checks and balances created in the constitution provide for a balanced government, nonetheless, it is clear the Executive branch maintains a posture of authority, and is itself, at times, outside the sphere of law.
Prior to the midterm elections of 2006, the Republican majority wanted to maintain an imagined geographical space where a moral compass does not work. The direction of the lawmaking bodies were going south of the law, and creating spaces of exception for the detainees. The Supreme Court, the ultimate pinnacle of U.S. law, held individual opinions which reverse Constitutional law and International law. Moreover, the classification provided to the detainees in the studied cases does not provide a balanced space of humanity.
”They” are still the accused, and ”we” are still the judges. Arguably, Agamben”Ÿs and Said”Ÿs imagined geography and spaces of exception still exist, reinforced with continued arrests and use of prisons in Guantanamo, Iraq, Afghanistan, and other sites around the world. The Supreme Court case studies and examples of legislation have shown that there are public servants attempting to break the mold which holds detainees in spaces of exception, but their actions are subdued by signing statements, vetoes or partisan congressional legislation. The future of the detainees is uncertain, but it is safe to assume the spaces of exception will not last forever. ”Inasmuch as its inhabitants have been stripped of every political status and reduced completely to naked life, the camp is…the most absolute biopolitical space that has ever been realized — a space in which power confronts nothing other than pure biological life without any mediation” (Agamben 40.1).
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