Why Obama can’t close Guantánamo
One of President Obama's promises at his inauguration was to close the detention camp at Guantánamo Bay. Two years later, it remains open. Professor Dick Ellis explains why.
by R. J. Ellis
University of Birmingham
Posted 10th November 2010
In 2003 George W. Bush offered a black and white depiction of the detainees held within Guantánamo Bay. Having removed all their legal and constitutional protections and imposed an absolute executive authority, Bush baldly asserted that they were ‘bad people’. Yet, ironically, by reducing them thereby to bare existence, Bush also visited upon the USA both dilemmas and threats that Barack Obama still struggles to resolve.
In part Bush’s actions sought to render Guantánamo’s ground suitably neutral, by defusing the controversies which Guantánamo’s long and chequered history and recurrent invasions had generated, starting with Columbus’s second American voyage in 1494 and including a British incursion in 1741 (during the War of Jenkins’ Ear against Spain), intended to preserve Britain’s dominance of the transatlantic slave trade. Disturbingly, in this respect, Guantánamo contains an undetermined number of detainees who had literally been sold into captivity (as if into slavery) to secure $5000 bounties offered by US agents to anyone capturing those that could be held to be suspicious foreigners along the Pakistan-Afghanistan border. As one of these, Ahmed Errachidi explains, he was ‘sold’ to a middleman acting for the USA, literally, ‘becoming his’, like a slave.
However, Bush particularly wanted to evade the legal debates stirred up by the controversial lease the US imposed after helping Cuba gain independence from Spain in the 1890s. Intended to last indefinitely, this lease was terminable only by a establishing a mutual consent that was unlikely to materialize, given Guantánamo Bay’s dominance of key Caribbean shipping lanes. The base was simply too important to the USA for it ever to be given up.
Nominally functioning as Guantánamo’s tenant, the US secured an imperious power over this part of Cuba. Effectively leased in perpetuity, the base could only be held to remain under Cuban sovereignty by sleight of rhetoric. But this arrangement enabled the Bush administration to elide Guantánamo’s awkward historical legacy by arguing that the base, though under US control, lay beyond the reach of Constitutional protection, as it was not part of the USA but belonged to Cuba.
This chop-logic not only allowed the Bush administration to integrate Guantánamo’s camps into an otherwise secret archipelago of such US internment camps, but to do so in a highly disturbing different way: openly. It cleared the way for the imposition of executive power over the camps, following Cheney’s argument that after 9/11 the President’s authority needs to be ‘effective … in the national security arena’. Consequently a military order was introduced in November, 2001 dictating that the US military at Guantánamo had the right to detain inmates indefinitely, to deprive them of access to civil courts, and to try them for war crimes by a military commission. Additionally, the Geneva Conventions were suspended, allowing Rumsfeld to introduce interrogation techniques going beyond Geneva’s provisions.
Such an assumption of absolute executive authority eliminated any need to negotiate controversial legal precedents, such as were long debated during the so-called ‘Insular Cases’ of the early 1900s. These debates had established that the US Constitution need not follow the US flag into its unincorporated territories, but did this on the basis of a racist argument: that these unincorporated territories’ populations were ‘unfit to receive’ such constitutional rights – an uncomfortable echo of how the Dred Scott judgement had removed African Americans from constitutional protection before the American Civil War, by arguing that African Americans were ‘not … “citizens” within the meaning of the Constitution’ and so were ‘not entitled to sue in that character in a court of the United States’. In other words, they could be held as slaves.
Under Bush, this racist legal argument did not need to be revived. His executive control of Guantánamo eliminated the need to make this argument – an elimination symbolically marked by freely allowing the media to take photographs of the detainees in Camp Delta during its very first days. The message was that all was open and above board. But this transparency disguised how, as one anonymous CIA source observed, in 90% of cases the detainees were not ‘dangerous’ at all but ‘people that don’t have anything to do with it’. If we accept this figure of 90%, we are talking of circa 680 people. All of them had lost any access to a Court of law.
Yet the Bush administration’s search for black and white certainty by performing these strategic manoeuvres failed. Symptomatically, the administration came to regret the open access first granted to media photographers. The Guantánamo camps’ detainees, rendered stateless and deprived of all human rights, could only recuperate their humanity via other external contacts, outside of the US controlled Guantánamo camps. So the camps inevitably become the hub of an ever-more complex network, taking in Afghanistan, Pakistan, Iran, Iraq, Cuba, Haiti, the UK, Spain, Jamaica, the Philippines, Canada, Morocco, Libya, Tunisia, Diego Garcia, Turkistan, China, Russia, Chechnya.
Bush thereby created in the Guantánamo camps a hybrid network. It had the capability of expanding rapidly out across the world. Yet it also possessed a compactness, organised around the central hub of Guantánamo’s camps. This makes it a highly dynamic yet robust corner-stone of both growing international protest and global terrorist expansion. Ironically, the US should have been aware of such potential. In 2002, Bush had established the Information Awareness Office under John Poindexter, aimed at countering asymmetric threats – terrorist threats and the like – by developing expert monitoring of all forms of digital communication. Because of understandable fears about mass surveillance, Congress removed the IAO’s funding in 2003, but the fact that some of its projects continue indicates the executive’s awareness of the original project’s potential to secure ‘Total Information Awareness’ by monitoring all e-messaging. This ought to have led to some understanding of the network stimulated by the Guantánamo camps’ existence.
But this does not seem to have been the case. Nor was there an apparent exit strategy, as Obama has been discovering. Bush’s assumption of executive power, rendering detainees stateless, created intractable problems about their relocation: unable to be rehabilitated within the USA without severe legal consequences and with repatriation left as a near impossible and sometimes dangerous option. Obama’s first proposal was to devise a new internal system of justice to handle their cases. Predictably, its introduction has proved so controversial that, ironically, it could not operate within the territory of the United States. Faced with the likelihood of successful charges of torture being levelled, the US executive will almost necessarily decide that some of the camps’ detainees must for the present remain in suspension, or at best be released into unexpected compliant locations, such as Bermuda, where Guantánamo’s Uighurs were sent in June 2009. Such a choice of destination well illustrates how Guantánamo poses intractable problems. Bush’s search for black and white executive certainty has ensured that Guantánamo will not readily go away. Nor will its dynamic, hybrid network, as Obama is discovering.
This is a much shortened and edited version of an article that appeared in Comparative American Studies.
My thanks to the editor, Nick Selby and to Maney Publications for permission to reprint this shortened version.
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