Totem and Taboo: The Non-Closure of Guantánamo

I think at this point they feel their only way out of Guantanamo is in a coffin
Pardiss Kebriaei, Attorney with Centre for Constitutional Rights, May 1, 2013

Guantánamo’s resplendent carceral facilities remain a classic example of double realities, the co-existence of totemic impulses and the reflex of taboo. On the one hand, it has become an institutional reminder of the extensive, vague and indefinite “war” on terror, a foolish, reactive statement to calamity. On the other, it has assumed the most negative connotations, a rebuke to law, extra-legal subversions and a mockery of the legal system. To close it, however, would be deemed a violation. To keep it open similarly remains a violation of principle.

The Obama administration promised to close it but caved in under pressure from Congress and pro-camp advocates. As with so many matters, the power of the budget spoke volumes. Furthermore, these detainees, kept wrongfully in many instances without a tissue of evidence against their name, might well have a crack at the United States once they leave. Ever was there a disgruntled person made a criminal by a prison. Governments from other countries similarly baulked – why should they receive such damaged cargo?

In the initial years, the Obama administration released 71 men from the facility, of whom 40 were repatriated to 17 third countries. The momentum dramatically stopped, with the State Department envoy responsible for handling repatriations removed.

The very basis of incarceration without charge or conviction has demonstrated the gravest issue of legal exceptionalism in U.S. policy and jurisprudence. The detainees, many kept in the facility for eleven-and-a-half years have become the refuse of a legal system that refuses to either expunge them or incorporate them as subjects of law. They are, for all intents and purposes, non-subjects, creatures of juridical purgatory. The absurdity of this is made apparent by the fact that a detainee like Sabry Mohammed has been cleared for release by a Justice Department list from 2010, yet remains in detention.

Released, yet imprisoned; imprisoned yet uncharged. A legal cul-de-sac has been reached. “We should be wiser,” urges Obama. “We should have more experience in how we prosecute terrorists. This is a lingering problem that is not going to get better. It is going to get worse.”

Obama himself acknowledges that the facility is also providing something else – an incentive to attack the United States, a distinctly different sort of light on the hill. The base has become something of a “recruitment tool” for extremists and more than just a public relations eye sore.

The high drama of Guantánamo has reached another level with accelerated use on the part of the inmates of hunger strikes. Allegations have been made of a particularly unsavoury aspect the authorities have been noted to do – mistreat Qur’ans in the possession of the inmates. This is merely the tip of a particularly vast iceberg of abuse. The war of the stomach, used for political ends, is now in full swing.

Figures vary, but it seems that at least 100 prisoners have embarked on this act of ceremonial starvation, a number that has grown over the last few months. The authorities, alarmed, have force fed 23, deploying a 40-strong medical force to administer treatment to the protesters. Pardiss Kebriaei, senior attorney for Sabry Mohammed, described the determination of his client to force the issue. “He told me, ‘I don’t want to not eat, I don’t want to starve myself. I don’t want to die, I want to see my family, but I have been pushed too far” (CBS News, May 1).

A petition by former prosecutor Col. Morris Davis to close the Bay facilities is red hot with signatures, reaching 75,000 within 24 hours. “There is something fundamentally wrong with a system where not being charged with a war crime keeps you locked away indefinitely and a war crime conviction is your ticket home.” This is the great brutal absurdity – the necessity to be convicted in order to be freed.

Individuals such as Buck McKeon, Republican chairman of the House Armed Services Committee support what has become the necessary absurdity. While it might be not merely moronic but unjust to detain the released and only release the guilty, he protested that Obama “has offered no alternative plan regarding detainees there, nor a plan for future terrorist captures” (Al Jazeera, May 1).

This has been an unwanted spectacle for the Obama administration, bringing what seems to be a calculated gesture of empathy from the President. The fact that the closure itself seems unlikely doesn’t detract from the pathos – he is performing a role as commander-in-chief, and fears that reputations will be turned to mud. Terrorist recruits are readying ideologies and weapons. It is a pity that, for all its tear-jerking qualities, the promise to close the base won’t have much effect. Purgatories are, by their nature, intractable and, for the sake of the Guantánamo facility, irresistible.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

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