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8/11/2019 Black Flag Guantanamo Bay and the Sn Derek Gregory Geografiska Annaler. Series B, Human Geography, The - U
1/24
The Black Flag: Guantnamo Bay and the Space of Exception
Author(s): Derek GregorySource: Geografiska Annaler. Series B, Human Geography, Vol. 88, No. 4 (2006), pp. 405-427Published by: Wileyon behalf of the Swedish Society for Anthropology and GeographyStable URL: http://www.jstor.org/stable/4621537.
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2/24
THE
BLACK
FLAG:
GUANTANAMO
BAY
AND
THE
SPACE
OF
EXCEPTION
by
Derek
Gregory
Gregory,
D.,
2006:
The black
flag:
Guantanamo
ay
and the
space
of
exception.
Geogr.
Ann.,
88 B
(4):
405-427.
ABSTRACT.
heAmerican
rison amp
atGuantanamo
ay
has
oftenbeendescribed
s a lawless
space,
and
many
commentators
havedrawn n the
writings
f
GiorgioAgamben
o formalize
his
description
s a
'space
of
exception'.Agamben's
ccountof
the
relations etween
overeign ower,
aw andviolencehas
much
o
offer,but t fails orecognizehecontinuedalienceof thecolonial
architecturesf
power
that have been invested n Guantinamo
Bay,
is
insufficiently
ttentive o
the
spatialities
f international
(rather
han
national)
aw,
and s
unduly essimistic
bout
he
pol-
itics of resistance.
Guantinamo
ay depends
n the mobilization
of two
contradictoryegalgeographies, ne
that
places heprison
outside he UnitedStates to allow the indefinite etention
f its
captives,
and
another
hat
places
the
prison
within
the United
States n order o
permit
heir coercive
nterogation'.
detailed
analysis
f these
nterlocking
patialities
as
both
egal
textsand
politicalpractices
is crucial
or
anycrique
f the
global
war
pris-
on. Therelations etween awandviolencearemore
omplex
and
contorted
hanmost accounts
allow,
and sites
like
Guantinamo
Bay
needto
be seen not as
paradigmaticpaces
of
political
mo-
dernityasAgamben rgues) utrather spotential paceswhose
realization
s an
occasion
or
political truggle
not
pessimism.
Key
words:
aw, torture,
pace
of
exception,
waron
terror',
war
prison
Even at this
hour,
beads
of
sweat crawled
acrosshis
scalp.By
the time the sun
was
up
it
wouldbe another
ay
for the
black
lag,
which
the
Army
hoisted whenever he
temperature
rose
beyond
reason.
An
apt symbol,
Falk
thought,
ike some
rectangular
ole
in the
sky
thatyou mightfall into,neverto reappear.A
national
banner
or
Camp
Delta's
Republic
of
Nobody,populated y
640
prisoners
rom
or-
ty
countries,
none of
whom
had the
slightest
idea how
long they
would be here.
(Dan
Fesperman,
ThePrisoner
of
Guantdnamo)
Bare life
In
the
earlymorning
of 10 June2006 three
prison-
ers held at themilitarydetention acilityat the US
NavalStationat Guantinamo
Bay,
Cuba,
wo
from
Saudi Arabia and
one from
Yemen,
were found
dead
n
their
cells.Although
he
threemen
hadbeen
detainedwithout
rial or several
years
and
noneof
them
had
court
cases
or
military
commissions
pending
none
of themhadeven been
charged),
he
commander
f the
prison
dismissed heirsuicides
as
'not
an act
of
desperation
utan act
of
asymmet-
ric warfare
gainst
us'.
Although
he threemen had
been on
repeated
unger
trikeswhichendedwhen
they
were
strapped
nto restraint hairsand force-
fed
by
nasal
ubes,
he
US
Deputy
Assistant
Secre-
tary
of State for
Public
Diplomacy
described
heir
deathsas
'a
PublicRelationsmove to
draw
atten-
tion'
-
to
what,
she did not
say
-
and
complained
thatsince detaineeshadaccessto
lawyers,
eceived
mail andhad
the
ability
o write o
families,
'it was
hardto see
why
the men had
not
protested
about
their situation'.
Althoughby presidential
decree
prisoners
at
Guantainamore
subject
o indefinite
detention ndcoercive nterrogation hiletheyare
alive,
when President
George
W. Bush
learned
of
the three deathshe
reportedly
tressed he
impor-
tanceof
treating
heirdeadbodies
in
a humane nd
culturally ensitivemanner'.I
It s
in
thefaceof contradictionsuchas these hat
many
commentatorsave
seen
Guantnamo
Bay
as
an iconic
example
of that
paradoxical pace
which
GiorgioAgamben
describesas 'the state
of
excep-
tion'.
In
what ollows examine his
characterization
in
detail,
and
pay particular
ttentiono the tortured
geographieshatwind n andout of thewarprison.
I
begin
witha
summary
ccount
f
Agamben's rgu-
ment,
butwhile
I
will be criticalof a number
f
his
formulations
intend his article
primarily
s a cri-
tique
of theBushadministration's
olitical heology
rather
han
Agamben's oliticalphilosophy.
Agamben's
account
turns
on the rotationsbe-
tween
sovereignpower,
he
state of
exception
and
bare ife.
2
It is a
sophisticated
hesis,
drawing
n
a
heterodox
roup
of
European
hinkers
Benjamin,
Foucault,
Heidegger
nd
Schmitt and
relying
on
a
seriesofargumentationketchesplucked romclas-
sical,
medieval nd
early
modem
aw
to
establish
he
modalities f
sovereign
ower.
ts
pivot
s thedismal
@
The author 006
405
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
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3/24
DEREK GREGORY
figure
of homo
sacer,
a
positionAgamben ays
was
conferred
by
archaicRoman aw
upon
those who
couldnot be sacrificed
ccording
o
ritual
because
they
were
outside
divine aw: heirdeaths
wereof
no
value
o the
gods)
butwho
couldbe killedwith
m-
punity(becausethey were outsidejuridical aw:
their
ives wereof no value
o
their
ontemporaries).
Critics
have
treated
Agamben's eading
as
partial
and
partisan:extravagant'ccording
o one and 'a
myth'
according
o another.
Buthis
purpose
s nei-
ther
textualnor historical.
nstead,
he
projects
his
figure
nto the
present,
s a
sortof
cipher
or
bearer
of what
he
calls 'bare
ife',
by making
wo
moves.
First,
Agambenargues
hathomosacer
emerges
at the
point
where
sovereignpower suspends
he
law,
whose
absence hus alls overa zone
not mere-
ly of exclusion but of abandonment. he produc-
tion of
such
a
space
-
the state of
exception
-
is cen-
tral to
Agamben's
accountof
modem
biopolitics.
This
space
is
produced hrough
a
speech-act,
or
more
accurately
decision n
the sense of 'a cut in
life',
that
s
at
once
performative
nd
paradoxical.
It is
performative
ecause t drawsa
boundary
e-
tween
politically
qualified
ife and
merely
existent
life
exposed
andabandonedo violence:
bare
ife'.
'However
sacred
man
is,'
Benjamin
wrote in his
Critique of
Violence,
'there is
no
sacredness
in
his
condition,n hisbodily ife vulnerable o injuryby
his
fellow
men'.
4
If
this
remark
s read as
bodily
life
madevulnerableo
injury
through
sovereign
decision)
then it
becomes
clear thatbare
ife
is
at
once
'immediately oliticized
but
nevertheless
x-
cluded
rom
he
polis'.
5
The
cutthat
eversbare
ife
from
politicallyqualified
ife
is
paradoxical,
ow-
ever,
and
all
formsof life are
thereby
made
precar-
ious,
because he
boundary
t
enacts s
mobile,
os-
cillating:
n
a
word
(Agamben's
word)
indistinct.
This s
necessary
not
a
contingent
ondition,
more-
over,
and
crucially
affects both time and
space.
First,
he
exception
mplies
a non-linear
emporal-
ity:
'The
exception
does
not subtract
tself
from he
rule;
rather,
he
rule,
suspending
tself,
gives
rise
to
the
exception
and,
maintaining
tself in
relation o
the
exception,
irstconstitutes tself
as a
rule'. Sec-
ond,
the
exception literally
hat which is
'taken
outside' is effected
through
a
distinctive
patial-
ity.
For
the
exception
'cannotbe included n
the
whole of
which
it is
a
member
and
cannot
be a
memberof
the
whole
in which t is
always
already
included'.The
mapping
of such a
spacerequires
topology, Agamben
concludes,
because
only
a
twisted
cartography
f
power
s
capable
of
folding
such
propriety
nto such
perversity.
Second,
Agamben
argues
hat n
the
contempo-
rary
world
the state of
exception
has become
the
rule.
Writing
while
Hitler's
armies advanced
on
Paris,
Benjamin
had
warned that 'the state
of
emergency
n which
we live is not the
exception
but therule',andAgamben ndorsesandenlarges
this claim.
7
Although
he
notes
that
concentration
camps
irst
merged
n
colonial
spaces
of
exception
in
Cuba
and
South
Africa,
he
passes
over
hese
(and
the colonial architectures f
power
that
produced
them)
o focus on Nazi
concentration
amps
and,
n
particular,
uschwitz.
He
treats he
concentration
camp
as 'the
materializationf the state of
excep-
tion',
'the
pure,
absoluteand
mpassable
iopoliti-
cal
space'
n which
uridical
ule
and
bare
ife
enter
into
'a
thresholdof
indistinction',
hrough
which
'lawconstantlypassesover into factand factinto
law,
and n which the
two
planes
become indistin-
guishable'.
Unlike
Foucault,
who identified
the
Third
Reich
as a
paroxysmal
pace
in which
sov-
ereign power
and
biopolitics
coincided,
however,
Agamben
nsists
that
none of
this is a
rupture
rom
the
project
of
modernity.
On the
contrary,
is
nar-
rative s
teleological,
and
he identifies
he
camp
as
'the hidden
paradigm
f
the
politicalspace
of mo-
dernity',
and
suggests
hat
ts
operations
ave
been
unfurled o
such a
degree
that
today,through
he
multiplicationf thecampas a carceralarchipela-
go,
the stateof
exception
has'reachedts
maximum
worldwide
deployment'.By
this means hat
sover-
eign power
has
produced
both
an
intensification
and a
proliferation
f bare ife.
If
this
seems
exor-
bitant,
Agamben
s
perfectly
undeterred.The
nor-
mative
aspect
of law can
thus
be
obliterated
nd
contradicted
with
impunity,'
e
continues,
hrough
a
constellation
of
sovereignpower
and state vio-
lence
that nevertheless
till
claims
to
be
applying
the law'.
In
such
a
circumstance,
e
concludes,
he
camp
has
become
'the
new
biopolitical
nomos of
the
planet'
and 'the
juridico-political
ystem
[has
transformed]
tself into a
killing
machine'.
As
Agamben
has
developed
this
critique
t
is,
above
all,
the
'war
on
terror'
hat
has come
to bein
his
sights.
He
argues
hat
he
locus
par
excellence
of this new stateof
exception
s
the
US NavalSta-
tion
at
Guantainamo
ay,
where
rom
January
002
men and
boys captured
during
he
US
invasionof
Afghanistan
ave
been
imprisoned.
He draws
par-
allels between
the
legal
statusof
prisoners
n
this
camp
and
prisoners
n
Auschwitz: heir
situations,
so he
says,
are
formally
-
'paradigmatically'
equivalent.
risoners
f a war
on terror
whoarede-
niedthestatus f
prisoners
f
war,Agamben
rgued
406
@
The author
006
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
This content downloaded from 142.103.160.110 on Thu, 4 Sep 2014 02:03:45 AMAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp8/11/2019 Black Flag Guantanamo Bay and the Sn Derek Gregory Geografiska Annaler. Series B, Human Geography, The - U
4/24
THE BLACK
FLAG:
GUANTANAMO
BAY AND THE SPACE OF
EXCEPTION
that
their
egal
status
s erased.
They
are not
legal
subjects
but
legally
unnameable ndunclassifiable
being[s]',
'the
object
of a
pure
de facto
rule'
or
a
'raw
power'
whose modalities
are
'entirely
re-
moved rom
he aw and rom
udicialoversight'.
n
the detaineeat Guantinamo,he concludes,'bare
life
reaches ts
maximum
ndeterminacy'.
Law,
violence and
the
space
of
exception
Agamben
often
refersto
the state of
exception
as
the
space
of
exception,
but its
spatiality
has re-
ceived little sustained
analysis.
Indeed,
Michael
Dillon
has
argued
hat:
The
topology
of
sovereignpower
s
not
in
fact
a spaceatall.It is a dividingpractice.As such
it does work.
That
work
s
not
simply
or
even
primarily,
owever,
o
command he domain
of
the inside
of
law
and
of order.
Rather,
t is
to effect
a
passage
between nsideand
outside,
law andviolence...
10
Dillon
is
I
think
correct
apart
romhis
first
sen-
tence.
Conceptions
f
space
need not be limited o
the
containermodel
thathe
rejects,
and
I
prefer
o
treat
pace
as a
performance,
doing,
because
only
in thiswaydo I think t possibleto show how the
passages
between nside and
outside,
aw
and
vio-
lence,
are
effected.
In what
follows,
I
trace
he
convolutions
f 'in-
side'
and
'outside'
hrough
he
instruments
f law
and
violence.
Agamben
argues
hat he
space
of ex-
ception
s
typicallyproduced
hrough
he declara-
tion
of
a
state of
emergency
that
becomes the
ground
hrough
which
sovereign
power
constitutes
andextends
tself.
Three
days
after he terrorist t-
tacks on the
Pentagon
and
the
WorldTradeCenter
on 11
September
001,
PresidentBush
declared
a
National
Emergency by
reason
of
[those]
attacks
andthe
continuing
nd
mmediate hreat
of further
attacks n the
United
States'.This
was
followed
by
a further
eclaration n 23
September
001 to
deal
with 'the unusualand
extraordinary
hreat o the
national
security, oreign policy
and
economy
of
the
United
States'
by 'grave
acts of terrorism nd
threatsof
terrorism ommitted
by
foreign
terror-
ists'. The
emergency
as
been
renewed
n
eachsub-
sequent
year,
and
Agamben uggests
hatBush 'is
attempting
o
produce
a situation
in
which the
emergency
ecomes herule': nwhich
provision-
al
and
exceptional
measures'are transformednto
'a
technique
of
government'.
n
fact,
however,
he
cascade
of national
mergencies
id not
begin
with
9/11.
Bushhas continued
no
less thanseven
previ-
ous
National
Emergencies
nddeclared
ight
oth-
ers. For
the United
States,
t
seems,
and
despite
he
language
used
to
proclaim
hem,
national
mergen-
cies arenotso 'unusual ndextraordinary'fterall.
But what
attracts
Agamben's
attention,
and
what
distinguishes
he double
emergencies
declared
n
September
001,
is their
proximity
o
a
supposedly
new
kind of war
(the
'war
on
terror')
andthe
legal
formularies
hathave
been mobilizedaround
t.12
Yetthese
emergencies
nd
he war hat
hey
have
been
used
to
license involve
a
spatiality
hat
is
largely
foreign
to
Agamben's
account.
His
brief
history
of
the state of
exception
n
Europe
andthe
United States
s
shaped
by
the
exigencies
of
war:
the AmericanCivilWar, he Franco-PrussianWar,
the First
World
War
and he Second
World
War.But
his
focus
is
on
suspensions
of
national aw
during
statesof
emergency
declared
by
France,
Germany,
Italy,
Britain
and the
United States. The connec-
tions between
sovereignpower
and
he
state
of
ex-
ception
are thus
always
framed
by
a
single
state,
and
the transnational
mplications
eceive
ittle
at-
tention.
13Yet
most of the
emergencies
nd
'excep-
tionalmeasures'
hathave
punctuated
ush's
pres-
idency
old thenational nto hetransnational.
hey
address ther tates Afghanistan,Cuba, ran, raq,
Libya,
Macedoniaand
Serbia,
Syria,
and Zimba-
bwe
among
hem whose actions
have,
at
one
time
or
another,
eenheld
to
pose
a
threat o
the
national
security
and
foreign
policy
of
the
United States.
The 'war
on
terror'
has
accentuated he
political
and
juridical
folds between the
nationaland the
transnational,
ut this
process
was
underway ong
before
9/11,
and the relations
between
sovereign
power,
aw and
spatiality
ave
been
complicated
n
two crucial
ways
that
bear
directly
on
Guantinamo
Bay.In
the
first
place,
the
Westphalian
model of
sov-
ereignty
has been
compromised
s
states have
in-
creasingly
asserted
prescriptive urisdiction
be-
yond
theirborders.
4
Legal
scholar
Kal
Raustiala
argues
hat
sovereignty
has
become
progressively
unbundled rom
territoriality'.Although
extra-
territoriality
s central o the
prosecution
f the
'war
on
terror',
American
attempts
o
decouple
aw
and
location
have
a much
ongerhistory
and
do
not
de-
rive
uniquely
romthe
global
assertion f
military
force. Someof them haveaddressed ransnational
economicactivitiesand criminal ransactionshat
have effects
within
the United
States; indeed,
claims
ike this are
made
n
mostof thedeclarations
@
The
author
006
407
Journal
ompilation
2006 Swedish
Society
or
Anthropology
nd
Geography
This content downloaded from 142.103.160.110 on Thu, 4 Sep 2014 02:03:45 AMAll use subject to JSTOR Terms and Conditions
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5/24
DEREK
GREGORY
of National
Emergency.
Others
haveextended
on-
stitutional
rotections
o
citizens
and
in
certain
ir-
cumstances)
liens
beyond
he
borders f the Unit-
ed
States;
one of the central
questions
posed
by
Guantinamo
Bay
concerns
he
reachof US
federal
law and heaccessofprisonersoUS courts o chal-
lenge
theirdetention.
That his is
indeed
a
question
bears
emphasis.
The Bush
administration
as re-
suscitated
he
doctrineof
the
unitary
xecutive,
n
which the
President's
actions
as
commander-in-
chief are
supposedlybeyond
he
law.
This
perverse
reading
of
the
Constitution oldsthat he executive
can
override
both the
judiciary
andthe
legislature.
As
the
profoundly
onservative
urist-cum-philos-
opher
CarlSchmitthad
t,
'Sovereign
s he who
de-
cides the
exception':
andBush
has insisted hat
he
is 'the decider'.But national mergenciesand the
specialpowers
hatderive rom
heir
proclamation
cannot
be
reduced o
a
decisionism;
neitherdoes
the
juridical
process meekly
fold
its tent
when it
hears
the martial drums of the commander-in-
chief.
As
Amy
Bartholomew
rgues,
a
succession
of
legal challenges
in US courts has shown that
'law
will
not
willingly
abdicate ts role to
a
stateof
exception
andwill
continue o
act
as
an
obstacle
o
the
arbitrary uthority
f the executive
branch'.'15
In
the second
place,
nternationalaw also mod-
ulates he actionsof the UnitedStates.Thecompli-
cated
spatiality
hat
Agamben
attributeso
the
(na-
tional)
state
of
exception
is
compounded
by
the
spatialities
of international
aw,
which
by
its
very
nature s
decentred,
without
a
unitary
overeign
o
ground
or
guarantee
ts
powers;
ts
provisions
are
distributed
hrough
a
congeries
of
conventions,
treaties
and
organizations.
For this
reason,
nine-
teenth-century
egal philosopher
John
Austin de-
clared
hat
nternational
aw is not
really
aw
at
all:
laws could
only
be
'properly
o called'
f
they
were
'commands
of a
sovereign',
which made interna-
tionallaw
merely
'law
by
close
analogy'.
16
As I
will show
below,
the Bush administration ould
clearly
like to have the United States
regarded
s
the
global sovereign,
and it has
repeatedly
an-
nounced
hat ts
prosecution
f
the
'war
on terror'
will notbe
hamstrung y
what t
views as outmoded
legal
protocols.
When he
was
Under
Secretary
f
Defense for
Policy,
Douglas
Feith declared
that
nothing
n the
Constitution
equired
he President
to seek
the
'approval'
f
non-Americans efore
act-
ing
to
protect
heUnitedStates.This
may
have
been
rhetorically
ffectivebut t wasalso
thoroughly
is-
ingenuous;
t reduced
nternational
aw to another
decisionismwhen Feith
knew
very
well
that nter-
national
aw
imposesobligations
ather
han
mere-
ly
invites
approval.
This
presumably
xplainswhy
he vilified
legal
ines of attack'
s
a formof
'asym-
metric
warfare'
sic)
deployed
o constrainAmer-
ica's
'global
freedomof
action'.17
But
legal
con-
straints n the 'waronterror'werenot so manyex-
ternal
mpositions
nd
rritants;
hey
wereendorsed
(and
vigorously
upheld)
by
law
officers
andothers
within the
State
Department
nd
even
the Penta-
gon.
Although
Bush
claimed hat
he
hadthe
power
to
suspend
he GenevaConventions
n
prosecuting
the
war
n
Afghanistan,
or
example,
he electednot
to do
so;
instead,
he
asserted hat
hey
did not
apply
to those
ighting
or
al-Qaeda
r
the
Taliban.Yethe
memoranda
xchanged
between
the
Departments
of Justice
and
Defense
and the State
Department
makeit plainthat Bush's actionswere notunder-
taken without
acing
down
a
series of
legal
chal-
lenges.
Other
provisions
of
international
aw
are
non-derogable:
in
particular,
the
prohibition
against
orture
s an absolute
right
to which there
areno
exceptions.
18
Here, oo,
as I will
also
show,
the Bush administration
ngaged
n a
frenzy
of le-
gal
argument
and
egerdemain)
n
order
o under-
write
he 'coercive
nterrogation'
f
prisoners
held
at Guant
namo and other
sites in the
global
war
prison.
Severalcriticshavedescribed he Bush admin-
istration
as
waging
'a war on
law',
and the Presi-
dent
plainly
shares
a Feith-based
mpatience
with
its
scruples.
International
aw?'Bush
responded
o
a
reporter
n
December
2003. 'I'd better
call
my
lawyer.
don't know
what
you're alking
about
by
internationalaw'.19
More
particularly,
t has be-
come common o
treatGuantinamo
Bay
as a
'law-
less
place'
that
s
'beyond
he reach
of
national
nd
international
aw';
a
place
where
sovereignpower
hasbeen
mobilized outside
he
ruleof
law';
a
wild
zone
subject
o 'a lawless
and
prerogatory
ower',
where'the law is
effectivelysuspended
n both ts
national
and
nternational
orms'andwheresover-
eign power
is
extended
in
excess of the
law';
a
'law-free
one';
anda
legal
'black
hole'.
Agamben
himself describes the
state of
exception
as
'a
kenomatic
state',
a vacant
space
limned
by
the
'emptiness
f law'.
20
This
has
become
a common-
place
critique
on
both
sides of the
Atlantic,
but
I
want o
drawon
the
previousparagraphs
o
qualify
its
rendering
f the
global
war
prison
n three
ways.
First,
I seek to
expose
the architecturesf colonial
power
which
Agamben
more or less
ignores,
be-
cause
the shadows hat allover the
contemporary
space
of
exception
are not limited to thoseof
the
408
@The author 006
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
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6/24
THE
BLACK FLAG:
GUANTANAMO
BAY AND
THE
SPACE
OF
EXCEPTION
Twin
Towers
of
the World Trade Center
or the
chimneys
of Auschwitz:the imbrications f law
and
violence
which
shape
he
colonial
present
have
a
longer genealogy
that
needs to
be
recoveredas
part
of the
process
of
critique.
Second,
and
ollow-
ing directly rom heseconsiderations,addresshe
international imensionsof law and violence that
Agambenglosses
over,
not because
I
think these
functionas
a
deus
ex
machinawhose activation
an
rescue homines
sacri
from their
fate
but,
on the
contrary,
ecause
nternationalaw
-
in
its
colonial
past
and
in
our
colonial
present
marks
a
crucial
site
of
politicalstruggle.Thirdly,
his
in
its turn
e-
quires
a
careful onsideration f the
possibilities
of
resistance hat
is
largely
absent
from
Agamben's
account,
because
here s
nothing
neluctable bout
theproduction rproliferationf spacesof excep-
tion.
These
claims run
throughout
he
discussion
that
follows,
where
I
triangulate
Guantinamo'
from hree
points.
First,
plot
thecontours f Euro-
American
xceptionalism
n
order o
mark
he co-
lonial,
colonizing gestures
through
which it
has
beenboth
authored
nd
authorized;
econd,
I
rattle
the
colonialchain
hat
yokes
the law
to
violence
in
Guantinamo's
ast; inally,
trace he detailed e-
gal
and
para-legal
roduction
f
Guantinamo
s
a
staging-post
or the
contemporary
war
on
terror'.
Enroute,twillbecomeclear hatBushdoesindeed
knowwhat internationalaw' s about and hathe
has
repeatedly
alled
his
lawyers.
Euro-American
exceptionalism
In
their
attempt
o
unravel
he connections etween
what
they
call
'our
brutal
global
state of
war'
and
'the
age
of
Empire',
Michael Hardtand
Antonio
Negri
begin
with he
politico-juridical
ntersections
between wo
exceptions,
ne
European
nd he
oth-
erAmerican.
1
These
ntersections
re
also efface-
ments,
however,
and
to show
why
this is
so
I
want
to revisit
Agamben'sreading
of the work of Carl
Schmitt
o
drawout the
shadowsof colonial
power
cast
by
thesetwo
exceptions.
Partof Schmitt's
pur-
pose
was
to show
hat n
Europe
n
the sixteenth nd
seventeenth
enturies
he
theological-moral
model
of the
'just
war'
sanctioned
y
the medieval
Chris-
tian
Church
gainst
nfidels
yielded
to the secular-
juridical
model
of
a
regulated
ndrationalizedwar
between
formallyequivalent overeign
states. In
this
economy
of death
warring overeigns
were
re-
quired
o
recognize
eachotheras
legal
equals,
and
on the
field of battle heir
subjects
were
obliged
to
recognize
each
other
as
subjects.
There
were
thus,
at least in
principle,
mutually
cknowledged
imits
to
enmity
and
violence,
and
within
his
space
the
space
of the
us publicumEuropaeum
sovereign
poweroperated,
o Schmitt
claimed,
hrough
nor-
mative
egulation.
He
argued
hatunlimited
nmity
andunrestrainediolence werenowbracketed nd
projected
beyond
he line' into the
non-European
(and
specifically
he
'New')
world.
As William
Ra-
sch
puts
it,
'Europe
ublimate[d]
ts
animality
by
establishing
he
Americas
as an
extralegal
one
in
which bestial deeds
[could]
be
acted out far
away'.
Schmitt dentified his
zone
of
alterity
the
space
supposedly
vacantfor the
play
of colonial
power
-
with
'the state of nature
n which
every-
thing
is
possible'
and
also with the
state
of
excep-
tion which 'bases tself
in
an
obviously
analogous
fashion on the idea of delimited, ree andempty
space'
understood
as a
'temporary
and
spatial
sphere
n
which
every
law is
suspended'.
For
Ag-
amben,however,
his was
no
analogy.
nstead,
he
state
of nature nd he stateof
exception merge
as
'but
two sides of
a
single
topological
process
in
which whatwas
presupposed
s
external
the
state
of
nature)
now
reappears,
s
in
a
M6bius
strip
or
a
Leyden ar,
n
the
inside
(as
stateof
exception)'.
22
This s a
contentious ut
highly
effective
iction,
a
celebration f
a
particular
onstellation
f
politi-
cal andeconomicpower,andSchmitt'sworkhasto
be
approached
iththe
utmost
ritical
vigilance
in
relation o both
Europe
and
'not-Europe').
3
His
central,
elegiac
point
was
that he line
-
a
colonial
meridian
had
slowly
dissolved
by
the
early
wen-
tieth
century,
nd
hat
he wild zones
of
colonial
vi-
olence had
appeared
within
the ruins
of the
Euro-
pean
order.Whathad
happened,
nd
according
o
Agamben
s still
happening,
s
that
he
'juridically
empty'
space
of the state of
exception
has trans-
gressed
its
spatiotemporal
oundariesand
now,
overflowing
outside
them,
is
starting
o coincide
with the
normal
order,
n
which
everything
again
becomes
possible'.
The
dissolution of the line
should
not be read
as a
reversion o Hobbes'
state
of
nature,however,
but
rather s the
emergence
of
the state
of
exception
as
what
Agamben
ees as 'the
permanent
tructure f
juridical-political
e-local-
izationand
dis-location'.
Whatwas once confined
is
now loose in the world.
24
Two
conclusions ollow from his
rough
outline
that
bear
directly
on the
production
f
'Guantaina-
mo'.
First,
by implication,
he
space
of
normative
regulation
was
producedby European
tates as-
serting
their
sovereignty
over the world
beyond
the line
and
co-producing
hrough
hoseassertions
@
The
author 006
409
Journal
ompilation
2006 Swedish
Society
or
Anthropology
nd
Geography
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7/24
DEREK GREGORY
a
vast colonial
space
of
exception.
But its
'topog-
raphies
of
cruelty',
as Achille Mbembe alls
them,
cannot be reduced to and hence
derived from
a
space
of
absolute
lawlessness.
25
Colonial wars
were
raw,ruthless, eral;
but the violence of
colo-
nialismwasnotconfined o warfare.The law was
intimately
nvolved
in
the modalitiesof colonial
violence,
and
nternational
aw
bears
he
marksof
those colonial
predations;
ts
locus
is drawn
not
only
through
relations
of
sovereign
states,
there-
fore,
but also
through
what
Peter
Fitzpatrick
alls
'the colonial domination
of
people
burdened
by
racialdifference'.
26
This
is not a
peculiarity
f
in-
ternational
aw,
which shares
n a
generalizedgal-
lery
of
imaginative eographies
where he
other
s
markedas
irredeemably
other,
and this cultural
carapaces extremelymportant. he uridicaland
the cultural
operate
together,
and the
racializa-
tions that
they jointly
license have been
given
a
particular
orce
by
President
Bush'sdeclaration f
the 'war on terror' as a war of
'Civilization'
against
he barbarians t the
gates
(and
within the
walls).
This
invocation of
an
indivisible
global
civilizationworks o makethe
exception
under-
stood
as
a zone of indistinctionbetween the law
and
its
suspension
-
invisible
by conjuring
a
shape-shifting,
nomadic
enemy
who
inhabits he
shadowsbeyond he human.This is a strategyhat
does not
so
much
sense the
presence
of
the
enemy,
the
midnight scurrying
n
the
skirting-board,
s
produce
the
enemy
through
he classificationsof
its
own
unnatural
istory.
Schmitt
himself warned
that to confiscate he word
'humanity'
and mobi-
lize
it
to
wage
war
would
mean
'denying
he
ene-
my
the
quality
of
being
humanand
declaring
him
to
be
an
outlaw
of
humanity'.By
this
means,
he
continued,
warcan 'be driven
o
the most extreme
inhumanity'.
n
short,
to
fight
n
the name
of
hu-
manity
does not
eliminate
enmity',
as
Andrew
Norris observes:'it
only
makesone's
enemy
the
representative
r embodiment f the inhuman'.
27
These
reductions,
iven
form
hrough
oth he law
and
its
suspension,
reactivate
a
colonial
past
in a
colonial
present:
These fine ethnic distinctions
effectively
re-
vive a
colonial
economy
n which nfrahuman-
ity,
measured
gainst
he benchmark f health-
ier
imperial
standards,
diminishes human
rights
andcan deferhuman
recognition.
The
native,
he
enemy,
he
prisoner
ndallthe other
shadowy
third
hings' odged
betweenanimal
andhuman an
only
be held accountable nder
special
emergency
rules
and
fierce martial
laws. Their
owly
statusunderscores he fact
that
hey
cannot
be
reciprocally
ndowedwith
the same
vital
humanity
njoyedby
theirwell-
heeled
captors, onquerors,udges,
execution-
ers andotherracialbetters.28
Second,
by
extrapolation,
he United States has
sought
not
only
to
displace
'old
Europe'
Rums-
feld's dismissive
phrase)
but
also
to
arrogate
o it-
self
the
power
to
drawnew horizons
of
visibility
and to constitute
tself 'as the
sovereign
who
tran-
scends he aw
and
husassures ts
meaning
and
en-
forcement'.
n
seeking
to
occupy
the
space
of
the
globalsovereign,
his
strategy
endersnternational
law as
'normal
aw',
'law
properly
so
called'
in
somethinglike Austin's sense, by declaringits
bracketing
or
suspension.
The
logic
articulated
through
he 'war on
terror'
hus derives
directly
from Schmitt's
political heology.
It
asserts
hat f
'internationalaw is
to
be seen as universal nd
n-
ternational
politics
as
ethical,' then,
as
Costas
Douzinas
remarks,
one
power
must
be
exempted
from ts
operations,
nd
through
ts
forceful nter-
vention
and
sovereign
interpretation
f the
law,
give
it
its
desiredseamlessness'.
t
also
gives
it its
ruthlessness,
or the humanism hat his licenses is
whatDouzinascalls a 'militaryhumanism'hatef-
faces its uncounted thersas so
many
mutebearers
of
bare ife. This
is
the
pivot
around
which
the
rad-
ical
critique
f American
Empire
urns.Whereonce
the
United
States claimed to be
exempt
from the
corruptions
of
European
forms
of
sovereignty,
Hardt nd
Negriargue
hat t nowclaims
exemption
fromthe
law
itself.And whereonce
warwas
regu-
lated,
subordinatedo international
aw,
it
is now
regulating,exploiting
the
conjunctions
between
violence andthe
law.29
Guantainamo
nd the
colonial
past
Colonialism
requently perates
nder he
mprima-
turof
law,
both
n the
past
and
(as
the
people
of
Pal-
estine and
Iraq
know
only
too
well)
in
the
present,
and ts violentassaults
on
land,
iberty
and ife
are
regularly
authorized
nd
articulated
hrough egal
formularies.
he
legislative
and
interpretive
ields,
the actionsof rulers
and
judges,
are thus suffused
withviolence.
f
their
metropolitan
peration
takes
place
n a field of
pain
and
death',
as
RobertCover
once observed
resciently,
henhowmuchmorean-
guished
s their
colonial
mode of address? f their
normal
powers
are'realized
n
the
flesh',
as
he also
410
?
The author 006
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
This content downloaded from 142.103.160.110 on Thu, 4 Sep 2014 02:03:45 AMAll use subject to JSTOR Terms and Conditions
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8/24
THE
BLACK
FLAG:
GUANTANAMO BAY
AND
THE SPACE OF EXCEPTION
remarked,
hen
how much
more
painful
is their
emergency
nvocation?
0
Guantdinamo
ay
bears he marksof these
liga-
turesbetween
colonialism,
iolenceand
he aw.
Its
modern
history
has
been
shapedby military
en-
countersbetween threeimperialpowers- Spain,
the UnitedStatesand
he
SovietUnion and
by
en-
during militaryoccupation.
Cubansrose
against
their
Spanish occupiers
three
times in
the nine-
teenth
century:
in
1868-1878,
1879-1880
and
1895-1898.
Oneof the
principal
rchitects f
thefi-
nalWar
of
Independence
as the exiled writer os6
Marti,
who
was
killed
in a
battle
with the
Spanish
army ust
one month
afterhe
returned
o the island.
It
was
one
of his
poems
that ater
provided
he
in-
spiration
or the
song
'Guantainamera'.Alarmed
y
thestrength ndsuccessof therevolutionaries,he
Spanish
military
governor
ought
to
cut
off their
support
n the
countryside
hrough
a
policy
of
reconcentracidn.
Hundreds f thousandsof
peas-
ants
were
forcibly
relocated
nto
barbed-wire on-
centration
camps
close to the towns and
cities,
where
many
(some
reports
said
as
many
as
one
half)
of
them
were
eft
to
starve o
death.An
Amer-
ican Senatorwho travelled
hrough
he four west-
ern
provinces
described
landscape
f
terrible,
er-
rifying
ndistinction:
It is
neither
peace
norwar. t
is concentration nddesolation'.Publicopinion n
the UnitedStates
was
inflamed
by press
reports
of
these
atrocities,
ut
he
desire or
military
nterven-
tion
was also
motivated
y
thoroughly
nstrumental
economicand
strategic
nterests.
n
fact the
United
States
had made
repeated attempts
to
purchase
Cuba rom
Spain
n
the
closing
decadesof thenine-
teenth
century,
nd t was
only
after he ast
of
these
offers
had
been
rejected
n
1897
that
Washington,
buoyed
by
the
rising
tide
of
public
opinion,
ound
a
pretext
and in
1898 declared
war
on
Spain.
The
ironies
multiply.
Then,
as
now,
this was an
imagewar.
Photographs
f
the
effects of
Spain's
counter-
insurgency perationsheightenedpublic
condem-
nation
of
its
oppressive
olonial
regime.
This s
the
origin
of the
apocryphal elegram
rom
William
Randolph
Hearst
o
Thomas
Remington
n
Havana:
'You
urnish
he
pictures,
andI'll
furnish
he war'.
And,
as DanielRoss
wryly
observes,
theAmerican
prize
for
its
outrage
at
Spanish
concentration
camps
n
Cubahas becomethe
right
o
run
ts own
camp
on
the same
territory'.
1
When
peace
was
concluded
ater
hat
yearSpain
relinquished
ll its overseas
possessions
but
Cuba,
farfrom
being
free,
remained nderAmericanmil-
itaryoccupation
or three urther
ears.
n
1901 the
United States
stipulated
ts conditions or
Cuban
independence hrough
provisions
set out
in
the
PlattAmendment
o
the
Appropriations
ill in
the
US
Congress
hat authorized ontinued
inancing
of the
occupation.
The
CubanConstitutionalAs-
semblyrejected heseprovisionsas an encroach-
ment
on the
independence
nd
sovereignty
of the
island,
but the United States nsistedthat
military
occupation
wouldnot
end
without heir
ncorpora-
tion into
the
constitution.
They
were
narrowly
n-
dorsed
by
the
Assembly
in
1902,
and reserved o
the UnitedStates he
right
o intervene
n
thefuture
'for the
preservation
f Cuban
ndependence'
nd,
to
that
end,
required
Cuba
to
sell
or
lease to the
United
States lands
necessary
or
coaling
ornaval
stations'.
32
Accordingly,
Guantainamo
ay
was
leased romCubanFebruary 903 'for hetimere-
quired
or the
purposes
of
coaling
and naval sta-
tions' and the United States was
permitted
to
do
any
and
all
thingsnecessary
o fit the
premises
or
use as
coaling
and naval
stations
only,
and
or
no
other
purpose'
(emphasis
added).
The lease could
only
be terminatedwiththe consent
of
both
parties
or
through
he unilateral bandonment f the base
by
the
United
States. ts central
rovision
ead
hus:
While on the
one hand
he
UnitedStates
reco-
gnizes the continuanceof the ultimatesove-
reignty
of the
Republic
of
Cubaover
he above
described reasof land
and
water,
on the other
hand he
Republic
of
Cubaconsents hat
dur-
ing
the
period
of
the
occupation y
the United
States of said areas under the
terms of
this
agreement
the United States shall exercise
complete jurisdiction
and
control over
and
withinsaid areas.
Amy
Kaplan
argues
hat
this
language
mposes
a
hierarchy
between
recognition
and
consent,
'ren-
dering
Cuban
sovereignty
over Guantinamo
Bay
contingent
on
the
acknowledgment
f the United
States,
n
exchange
or
which
Cuba
agrees
o cede
sovereignty
over
part
of the
territory
t
nevercon-
trolled'.
Many
commentators ave
argued
hat in
doing
so
the
lease
locates Guantainamo
n
an am-
biguous space
betweenthe
'ultimate
overeignty'
of Cuba
and
he
'complete urisdiction'
f theUnit-
ed
States.33
In
1959,
following
the
revolution,
he
govern-
mentof Cuba ried
unsuccessfully
o terminatehe
lease,
andsincethen thasmaintainedhat he
pres-
ence ofAmerican rmed orces on
Cuban oil
is an
illegal
occupation
as
President idel
Castro
puts
t,
@The
author 006
411
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ompilation
2006
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Society
or
Anthropology
nd
Geography
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9/24
DEREK GREGORY
'a
knife n
the heartof Cuba's
overeignty').
At the
height
of
the
Cubanmissile crisis n
October
1962,
PresidentJohn F.
Kennedy
rejected
he advice
of
his
Secretary
f DefenseRobertMcNamara
o
pro-
pose
a timetable
for US withdrawal
from
Guantinamo s a quidpro quofor the removalof
Soviet
medium-range
missiles and
bombers rom
the
island.
Kennedy
also
ignored
requests
from
both Khruschev nd
Castro o return
Guantinamo
to
Cuba.The base's
perimeter
was
strengthened
s
a
symbolic
frontier
between
capitalism
and
com-
munism,
and
Guantanimo
emainedunderAmer-
ican
occupation
hroughout
he
Cold
War
and be-
yond.
Over the
years
the base
provided
ogistical
support
or US
military
nterventions
n
Cuba as
well as
the Dominican
Republic,
Guatemala,
Gre-
nada,Nicaragua ndPanama.Before hefinaldec-
ade of the
twentieth
entury,
however,
ts
role was
being
reassessed,
nd
n
1988JamesH.
Webb,
Sec-
retary
of the
Navy, thought
t
'reasonable o con-
clude
that
we
will
lose
our lease
in
Guantainamo
Bay
in
1999'.
His
conclusionwas
premature;
he
lease was
retained.From
1991
to
1994 Guantina-
mo
Bay
was
used to
provide
detention
amps
for
36000
refugees
from the
military
coup
in
Haiti
who were
denied
entry
nto the United
States,
and
again
in
1994-1995 to
imprison
21000
Cubans
seekingasylum nthe UnitedStates.Theforcedre-
patriation
of the detainees was
justified
on the
grounds
hat
hey
werenotentitled o
constitutional
protection
until
they
were at or withinthe
borders
of the United States.
34
This claim
traded on
Guantinamo's
ambiguous
ocation,
but the con-
struction f detention
amps
also
violated
he
terms
of the
lease,
which allowedthe land
to be used as
a
coaling
or
naval
tation
and,
as
I
noted
above,
for
no other
purpose'.
A
prison
camp
s an
illegal ap-
pendix
o
the
originalagreement,
nd
yet
it became
the
central
missionof the base.35
When
Kaplan
describes
Guantinamo
s 'haunt-
ed
by
the
ghosts
of
empire',
she is
surely
correct.
She also
suggests
that its
history
reveals 'a
logic
grounded
n
imperialism,whereby
coercive state
power
has
been
routinely
mobilized
beyond
the
sovereignty
of national
territory
and
outside the
rule of law'. Much
of that s accurate
oo; but,
as I
have
shown,
the base has
also
emerged
hrough
a
long process
of
legal argument,
and it
subsists
through egal
formularies bundlesof memoranda
and
minutes,
actsand
amendments,
reaties nd he
termsof thelease itself-
that,
aken
ogether,
ave
produced legal impasse:
a
stand-offbetween he
UnitedStates
which
nsists t has a
right
o
occupy
Guantinamo)
and Cuba
(which
has
declared
he
continued
occupation llegal).
For this
reason
it
seems
necessary
o add hat
he
space
of
Guantina-
mo also derives rom aw
at a
standstill. t is a
zone
of
indistinction
wherethe
legalized
and the
extra-
legalcross over nto oneanother.36
Guanta namo
nd the colonial
present
TheBushadministrationas
mademuchof the
pre-
sumptivenovelty
of the
'war
on
terror',
but
the se-
lection of Guantinamoas a
prison
camp,
the des-
ignation
of
its
inmates as 'unlawful
combatants'
and
the delineation f a
regime
of
interrogation
o
not
depart
rom hehistorical
emplates
hat
shaped
the base'scolonial
history
and
heir
mobilization f
legal protocols.In particular, leurJohnsargues
that:
The
plight
of the
Guantinamo
etainees s less
an
outcome
of
law's
suspension
or eviscera-
tion than of elaborate
egulatory
fforts
by
a
range
of
legal
authorities. The
detention
camps
are
above
all
worksof
legal representa-
tion
and
classification.
They
are
spaces
where
law and iberal
proceduralism
peak
and
oper-
ate in
excess.37
This seems
to
me
to be
exactlyright;
butwhat s
the
imperative
behind such excess? What
demands
such
an
involuted
egalismthrough
which the law
is
contorted nto ever more
baroque
distinctions?
The answer
s,
in
part,
a
matterof
indeterminacy:
the Bushadministrationid not
speak
witha
single
voice
(until
the President
poke).
For
far
from the
reactivation f the
prison camps
at
Guantanamo
signalling
he retreat f law from he field
of
battle,
there
was a
vigorous
debatebetweenthe
Depart-
mentsof DefenseandJusticeand
he State
Depart-ment over the
prosecution
f the 'waron
terror'.
Legal
advisersand
political principals
onstantly
invoked
egal
precedents
ndadvanced
egal
inter-
pretations
o
support
heirrival
claims.The
result,
as
ChristianeWilke
argues,
was that
Guantinamo
was not
placed
outside he law:
'the
applicable
e-
gal regulations
were]
too dense to
allow
such
a
claim'. But the result of these
contending
argu-
ments
-
which
eventually spilled
over into the
courts
-
was to
confine
prisoners
n what
Wilke
calls 'a
place
of
rightlessness
n a
context hat
was]
not lawless'.
38And
this
supplies
he other
part
of
the
explanation:
he Presidentand his
closest
ad-
visers were determined o treat the
prisoners
at
412
?
The author 006
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
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10/24
THE BLACK FLAG: GUANTANAMO
BAY AND THE SPACE OF EXCEPTION
Guantanamo
s
legal objects
rather han
egal
sub-
jects
in
order
o
wage
the 'war on terror'
hrough
their
very
bodies.This
virulently iopolitical
trat-
egy
involved ndefinitedetention
and
'coercive
n-
terrogation'
ut,
as
I
now
show,
these
required
he
administrationo mobilizetworadicallydifferent,
contradictoryegal
geographies.
Extra-territoriality
and indefinite detention
The immediate
objective,
on
which
both
sides
seem
to have
agreed,
was
to
place
selected
prison-
ers
taken
during
he war
n
Afghanistan eyond
he
reach
of
any
federal
district
court
that
might
en-
tertain
a
habeas
corpus
petition.
A
writ of habeas
corpus
orders
a
prisoner
o be
brought
before
a
courtto determinewhethers/he has been impris-
oned
lawfully.
Congressgranted
all
federalcourts
jurisdiction
under title 28
of the
United States
Code
to
issue
such writs
to release
from
custody
prisoners
held
by
stateor federal
agencies
in vio-
lation
of the Constitution.
9
Here
the
ambiguous
status
of Guantanamowas assumed to
confer
a
distinct
advantage
over other sites that had
been
considered
o
be similar
o the
US bases on
Mid-
way
andWake.These were formerPacific Island
Trust erritories dministered
y
the UnitedStates
that were includedwithinthe federaldistrict of
Hawaii.
Guantanamo,
t was
argued,
was
beyond
the
reach of
any
districtcourt
because,
while
the
United
States exercised
'complete
jurisdiction'
over
the
base,
it
was 'neither
part
of the United
States nor
a
possession
or
territory
f the
United
States'.
40
OneWhite House counsel revealed
he
administration's
ouble-speak
with unusual lari-
ty:
Guantinamo's
ndeterminate
ocation
'would
eliminate
an
important
egal ambiguity'
by deny-
ing prisoners
held there access to
US courts.
The
reactivationof
the
Cuban
camps
thus
produced
precisely
the
space envisaged
in
the President's
Military
Order
of 13
November
2001,
in
which
it
would be
possible
to detain and
try
suspects
'for
violation of the
laws
of
war
and
other
applicable
laws'
-
in
effect,
acknowledging
he
supremacy
f
the
rule
of law
-
while
simultaneously
uspending
'the
principles
of law and rules of evidence
gen-
erally
recognised
n
the trial of criminalcases
in
the United Statesdistrictcourts'.
1
This
performance
f
the
space
of Guantainamo
would
eventually
becontested. nDecember2003
the US Courtof
Appeals
for the 9th Circuit
pro-
videda
radically
different
reading
of the
original
lease. The
majority
noted that
n
attributing
ulti-
mate
sovereignty'
o
Cuba,
the lease
implied
that
Cuba's
sovereignty
was
residual
in a
temporal
sense,
from
which it
followed
that,
during
ts oc-
cupation
of
the
base,
'the
United
States
possesses
and exercises
all
of the attributes f
sovereignty'.
Since Cubadoes not retainanysubstantive over-
eignty
while the base is
occupied by
the
United
States,
he
court
concluded hat
sovereignty
ests
in
the United
States',
a
finding
which
(as
it record-
ed)
is
consistent
with the
conduct of
the United
States,
whichhas
routinely
reatedGuantinamo
as
if it
were
subject
o American
overeignty'.
n
short,
the
majority
eterminedhatCuba s the reversion-
ary
sovereign
while the United
States
s the
tempo-
rary
sovereign:
but
sovereign
none
the
less.
42
In
June
2004,
the
Supreme
Court
n
a
separate
ase
ruled hat t had urisdictiono hearhabeascorpus
petitions
from
those
imprisoned
at
Guantainamo.
The
administrationad contested he extra-territo-
rial
application
f federal aw but the
majority
ar-
gued
that
'[w]hatever
raction
the
presumption
againstextraterritoriality ight
have
n othercon-
texts,
it
certainly
has
no
application
o
the
opera-
tion of the habeas statute
with
respect
to
persons
detained within the
territorial
urisdiction
of the
United States'. The
majority
did
not
think
t
nec-
essary
to
establish
sovereignty;
he
Achilles' Heel
of the administration'sase arosepreciselybecause
the
United Statesexercised
complete
urisdiction
and
control' ver
Guantinamo,
n
whichcase
it was
within the
territorial
urisdiction
of
the United
States.
Since
the
government ccepted
hat
District
Courts
had
urisdiction
verfederal
agents
andoth-
erAmerican itizens
employed
t
Guantainamo,
nd
since non-residentaliens had
access
to United
Statescourts o hear
petitions
f habeas
corpus,
he
majority
oundthat 'the
federal
courts
have
juris-
diction o determine he
legality
of the Executive's
potentially
ndefinite
detentionof individualswho
claim
to be
wholly
nnocent
of
wrongdoing'.
n
his
dissenting opinion,
however,
Justice
Scalia
com-
plained
hat n
its
ruling
the
Court
boldly
extends
the
scope
of
the habeas statute o the four
corners
of the
earth'.
Scalia
roundly
dismissed
arguments
based on
jurisdiction;
what was
crucial,
he
insist-
ed,
was
that
Guantinamo
was
not 'a
sovereign
do-
minion'.
Hence 'the
Commandern
Chief
andhis
subordinates ad
every
reason to
expect
that the
internmentof combatants at
Guantinamo
Bay
wouldnot havethe
consequence
of
bringing
the
cumbersome
machinery
of our domestic courts
into
militaryaffairs'.43
Thiswas
precisely
heir
expectation.
The admin-
@The author 006
413
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ompilation
2006 Swedish
Society
or
Anthropology
nd
Geography
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11/24
DEREK GREGORY
istration's
riginalprovisions
and
determinations,
elaborated
hrough
series
of detailed
memoranda,
were
designed
o
produce
a
convergence
between
sovereign power
and
governmentality hrough
whatJudithButler
describes s 'a lawthat s
no
law,
acourt hat snocourt,aprocess hat snoprocess'.
She sees thisas
an
nstrumental,
xpedient, ara-le-
gal
tactic,
n which
bothdetention ndtrial
arede-
termined
by
discretionaryudgements
hat 'func-
tionwithin
a
manufacturedaw
or thatmanufacture
law as
they
are
performed'.
4
Guantanaimo'
as
taken
o
signify
not
only
an
ambiguous pace
-
a
grey
zone over which the United
States
claims
u-
risdiction
but
not
sovereignty
but
also
a
place
of
indeterminateime:
As a territoryheld by the United States in
perpetuity
over which
sovereignty
s
indefi-
nitely
deferred,
he
temporal
dimensions of
Guantinamo's
ocation make it a
chillingly
appropriate lace
for
the
indefinitedetention
of unnamed nemies
in
what the
administra-
tion calls
a
perpetual
war
against
error.45
Intimate
geographies
and
'coercive
interrogation'
Buttheimperative f indefinitedetention, xtend-
ing
the
emergency
d
nfinitum,jibed gainst
a sec-
ond
objective
that
interrupted
ts
limbo with the
counter-imperative
f
speed.46
his is
wherebattle
was
joined
between Defense and
Justice on one
side and he State
Department
n theother.Thefirst
groupargued
hat the 'war
on
terror'
had
inaugu-
rated new
paradigm
hat
requirednterrogators
to
quickly
obtain nformationrom
captured
errorists
andtheir
sponsors',
and n theirview this
rendered
'obsolete
[the]
Geneva
[Convention]'s
trict imi-
tationson
questioning
f
enemy
prisoners'.47
That
being
so- and awofficers ntheState
Department
protested
hat it was
not so:
'a
decision that the
Conventionsdo
apply
[to
all
parties
n
the
war in
Afghanistan]
s
consistent
with
the
plain
anguage
of the Conventions nd he unvaried
ractice
f the
United States'
-
interrogations
would have to be
conducted
beyond
the
prosecutorial
eachof both
the federal
War
CrimesAct and the
GenevaCon-
ventions.
Accepting
he
adviceof DefenseandJus-
tice,
Bush
declared
hat
none of the
provisions
of
the GenevaConventions
pplied
o
al-Qaeda
pris-
oners. He also
accepted
hat he had the
authority
'underthe Constitution o
suspend
[the]
Geneva
[Conventions]
s between the
United States
and
Afghanistan',
ndhis favoured
egal
advisersout-
lined several
ways
in whichhe
might
do so.
Signa-
tories to the
Conventionshave the
right
to 'de-
nounce'
them,
but
they
are
required
o
give
one
year's
writtennotice
and,
f
this takes
place
during
anarmed onflict, heirrepudiations stayeduntil
the end of hostilities.Not
surprisingly,
ush
decid-
ed not to invoke his
option though
he reserved he
right
o do so
in
future);
he
preferred
he
expedient
of
deeming
Taliban
risoners
o be 'unlawful
om-
batants'who 'did not
qualify
as
prisoners
of war
under he Geneva
Conventions'.48
lthough
here
are established
procedures
o determine he status
of
prisoners
aken
during
rmed
onflict,
he
White
House insisted hatthese were
only
to
be
invoked
where
here
was
doubt.And
n
the view of the
Pres-
ident's innercircle, reinforcedby theirpolitical
theology,
herecould never
be
any
doubt.49
Herewas
sovereign
power
at its
most
naked,
and
when hefirst
prisoners
rom
Afghanistan
rrived t
Guantdinamo
ay
in
January
002,
it
was
viscerally
clear that
hey
were
to
be
reduced o bare ife. All
legal protections
adbeen
visibly
withdrawnrom
them.
Photographs
f their
transportation
nd in-
carceration t once
displayed
and
reinforced heir
reduction o
something
ess
than
human.
They
had
been
chained,
gloved,
ear-muffed and masked
throughoutheirtwenty-seven-hourlight,and ar-
rived
soaked
n
theirown
bodily
waste.
Otherwise,
the chairman f the
JointChiefs
of Staff
explained,
they
would
'gnaw throughhydraulic
ines at the
back of
a
C-17 to
bring
t
down'.
As
they slowly
shuffled
down
the
ramp
n their
umpsuits,
one re-
porter
wrote:
[They]
don't ook natural.
They
ook
like
giantbrightorange
lies'. Thenwere ed
off to
theirmakeshift teel-mesh
ages
at
CampX-Ray.50
The
Department
f Defense
published
ts
own
pho-
tographs
f
their
arrival,
hackledbetween
guards,
kneeling
and
bound,
or
transported
n stretcherso
interrogation
nd he
camp
and ts
cell-blocks,
and
Butler s
surelyright
o conclude hat his was done
'to
makeknown hat
a
certain
anquishing
adtak-
en
place,
hereversal f national
umiliation,
sign
of successfulvindication'.51
Camp
X-Ray
was
thrown
p
n a
matter f weeks
as
a
short-term
xpedient;
t was
closed
in
April
2002 whendetaineeswere ransferred
o cells
in
the
new,
moremodem
Camp
Delta,
whichwas intend-
ed for
long-term
ncarceration.t consists of four
internal
amps:Camps
1,2
and3 aremaximum-se-
curity
acilities n which
prisoners
areconfined o
individualcells with
varying
evels of restriction
and
privilege,
and
Camp
4 is a
medium-security
a-
414
@
The author 006
Journal
ompilation
2006
Swedish
Society
or
Anthropology
nd
Geography
This content downloaded from 142.103.160.110 on Thu, 4 Sep 2014 02:03:45 AMAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp8/11/2019 Black Flag Guantanamo Bay and the Sn Derek Gregory Geografiska Annaler. Series B, Human Geography, The - U
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8/11/2019 Black Flag Guantanamo Bay and the Sn Derek Gregory Geografiska Annaler. Series B, Human Geography, The - U
13/24
DEREK
GREGORY
scribes
torture
nd
coercive
nterrogation,
nd re-
quires military
nterrogators
o
comply
with
the
Geneva
Conventions. he US
Army
has
develop