The Guantánamo "Black Hole": The Law of War and the Sovereign Exception

Scott Michaelsen and Scott Cutler Shershow

(Scott Michaelsen is associate professor of English at Michigan State University. Scott Cutler Shershow is professor of English at the University of California, Davis.)

January 11, 2004

Since January 2002, over 700 persons from 42 different countries have been detained without charge or right to counsel by the United States at Guantánamo Bay in Cuba. While many detainees were captured by the US on battlefields in Afghanistan in late 2001, an unknown number of others were delivered there by other means, for example, by being sold to the US by Afghan warlords. According to Amnesty International, at least six Guantánamo prisoners were arrested in Bosnia-Herzegovina in January 2002. One of the cases to be taken up by the Supreme Court involves an Australian man, Mamdouh Habib, who claims to have traveled to Pakistan in October 2001 to look for employment, and found himself arrested by Pakistani authorities. He was transferred first to Egypt, then into US military hands in Afghanistan, and finally flown to Guantánamo in May 2002. The "unlawful combatants" being held at Guantánamo thus include persons arrested far from any active battlefield.

In December 2003, the US military began suggesting that approximately 100 of the remaining 660 Guantánamo detainees would be released to authorities in various countries. It is unclear what these new releases might mean. Are they a panicked response to the Supreme Court's acceptance on November 10 of several cases in which Guantánamo detainees are seeking issuance of writs of habeas corpus, or simply a sign of favoritism to "friendly" nations? In either case, the US is signaling that the releases are premised on promises from home countries not to simply let the detainees go. Nor is there much word on the fate of the remaining Guantánamo prisoners.

EXCEPTIONS DEFINE THE RULE

Some critics claim that US government actions with regard to the Guantánamo detainees fall entirely outside the existing legal frameworks, in a sort of legal "black hole." True, some Bush administration officials have occasionally (though informally) justified Guantánamo detentions with reference to the unprecedented nature of the post-September 11 "war on terrorism." In all formal contexts, however, the US government has carefully positioned its actions in terms of existing international law. For example, in March 2002, the Organization of American States' Inter-American Commission on Human Rights issued a call for the US to take "urgent measures" to determine whether the detainees were prisoners of war. Rather than simply ignoring the OAS ruling (as it had done with past rulings), the US gave the legalistic reply that "Under Article 4 of the Geneva Convention,... Taliban detainees are not entitled to prisoner of war status.... The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan.... Al-Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention." According to the US, all Taliban and al-Qaeda members rounded up worldwide are, by default, "unlawful combatants" rather than prisoners of war. 

Other critics, by contrast, charge that the US is in simple violation of international law, in particular the Third Geneva Convention, which was adopted in 1949. The problem with this viewpoint is that international law itself is a product of what Noam Chomsky calls the "state system" and was created to solidify a dominant position for powerful state actors in matters of war. All law, either implicitly or explicitly, carries with it recourse to exceptional situations; and the exceptions to international humanitarian law are persons who do not easily fit into traditional strong-state categories. As Michael Walzer showed in his oft-cited Just and Unjust Wars (1977), these include guerrilla fighters in struggles for liberation, their civilian supporters and, as a final grab-bag category, all "terrorists." Exceptions to the rule have in fact defined the rule of the laws of war, as can be demonstrated through close examination of the Geneva Conventions and the first formal codification of the law of war, the so-called Lieber Code produced during the American Civil War. Recourse to international law will never be sufficient to restrain states from actions such as those taken under the name Guantánamo. 

WHOSE DOUBT COUNTS?    

The crucial clause of the Third Geneva Convention that the US might have violated is Article 5: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal." But whose doubt counts here? The US position, expressed in documents submitted to the OAS and by Pierre-Richard Prosper, the US ambassador-at-large for war crimes issues, is that "doubt" refers primarily or even overwhelmingly to the "detaining power." The US, Prosper continues, has no such doubts. Amnesty International, along with the International Commission on Jurists and the Crimes of War Project, has argued, by contrast, that any competent government or civil group might raise a point of doubt. Amnesty suggests that one look to the International Committee of the Red Cross (ICRC), "the most authoritative body on the Geneva Conventions," for clarification of this crucial distinction. Yet Frits Kalshoven's Constraints on the Waging of War (1987), the primary ICRC document on these matters, suggests that the question of who is charged with raising doubt under Article 5 is "not always readily answered," and his examples exclusively concern detaining powers (the US and Israel) questioning their own classifications. Beyond this, according to the ICRC, even under the most "liberal" construction of the Third Convention, there remain "quite a few obstacles in the way of recognition of resistance or guerrilla fighters as prisoners of war."

The prominent critical theorist Judith Butler's analysis of these matters, published as "Guantánamo Limbo" by The Nation in April 2002, addresses similar ambiguities, yet is unable to resolve them. On the one hand, Butler asserts that the US is in "flagrant violation" of the Geneva Conventions. On the other hand, she suggests that the Geneva Conventions "are of only limited help here," since they are "pervasively biased toward the nation-state," and regard terrorists as always "outside the protocols" and even "outside the law" entirely. Thus, according to Butler, the US has flagrantly violated international law, but the violations cannot be proven using the actual documents of international law. Butler's text vacillates between two poles of thought, arguing, in turn, that the Guantánamo Bay detainees are inside the law or outside the law; that the US is an international scofflaw or not. This tactic avoids consideration of both sides of the problem simultaneously, something which some other contemporary theorists, such as Giorgio Agamben, have tried to do by interrogating the nature of sovereignty itself. As Agamben suggests in Homo Sacer (1998), sovereignty is precisely the way in which "something is included solely through its exclusion": "the juridico-political order has the structure of an inclusion of what is simultaneously pushed outside."

Butler fails to recognize that the Guantánamo prisoners are both outside and inside the normative rule of law. She makes two recommendations: to read the Geneva Conventions more openly, and to produce a new international document which would clearly grant the Guantánamo prisoners prisoner of war status. Such practical prescriptions, however, ignore what she elsewhere acknowledges: that all US actions in this case are grounded in the assumption that, as Speaker of the House Dennis Hastert puts it, "there are exceptions to the universal, and we are dealing with the exception here." Butler seems to think such exceptionality is no more than a right-wing ploy to circumvent international agreements; in its stead, she seeks the universalization of certain rights without exception. But as legal theorist Carl Schmitt argued long ago, sovereignty is precisely the power to determine the exception to the rule. The Guantánamo prisoners, as exceptions to the humanitarian laws of war, are in fact foundational for those laws.

THE LIEBER CODE

The humanitarian laws of war were first codified by legal philosopher Francis Lieber at a time long before the Geneva Conventions, at the behest of President Abraham Lincoln. The "Lieber Code," which directly influenced both the Hague deliberations at the turn of the century, and the Geneva Conventions in the mid-twentieth century, was put into effect on April 24, 1863 by Lincoln's secretary of war, Edwin Stanton. As Paragraph 155 of the Code clearly indicates, there are only two classes of persons in warfare: "All enemies in a regular war are divided into two general classes -- that is to say, into combatants and non-combatants, or unarmed citizens of the hostile government." Intriguingly, before the Code's existence in 1862, the general-in-chief of the US Army, Major General Henry Halleck, had already corresponded with Lieber regarding the exceptional problem of "guerrilla war." Lieber's 22-page reply was published before the Code itself became public and went into effect. In other words, in the history of the codification of the laws of war, the exception to the normative rules came first, providing the strange ground for the norm itself.

Lieber's letter on the guerrilla operates via a kind of double logic of the exception. Lieber is primarily concerned to distinguish between legal combatants entitled "to the full benefits of the laws of war" and "guerrillas" who are not. But as Lieber defines the term, the guerrilla is constituted by a variety of "kindred subjects," among them figures variously named the "freebooter," the "brigand," the "partisan" and so on. "Partisans," for example, are soldiers "detached from the main army" who resemble, and yet must be distinguished from, a "free corps" made up of "volunteers, generally raised by individuals authorized to do so by the government." Even though the members of this last sub-category are often "high-minded patriots," they are still to be rejected as unlawful combatants and treated "on the principle of retaliation." (This "retaliation," as Lieber makes clear in his formal code, refers to indiscriminate violence that can even include the killing of prisoners of war. "The law of war can no more wholly dispense with retaliation than can the law of nations," he insists.) By the same token, the category of lawful combatant cannot simply be limited to the regular uniformed soldiers of an organized army. Lieber also suggests, for example, that "the rising of the people to repel invasion entitles them to the full benefits of the law of war" and that a conquering power is "obliged to treat the captured citizens in arms as prisoners of war."   

At one and the same time, Lieber charts a variety of fine distinctions between otherwise similar practices, as he also draws a fundamental line beyond which all distinctions dissolve, and where all combatants, regardless of their specific motivations, are to be treated as "common robbers" and subject, if necessary, to indiscriminate violence. The law and practice of war thus remains inextricably linked to the limitless barbarism that it always seeks to transcend.

This double logic is deeply interwoven into the history of sovereignty and even the development of American constitutional democracy. Consider Lieber's description of one sub-category of illegal combatant: "Freebooter is a term which was in common use in the English language at no very remote period; it is of rare use now, because the freebooter makes his appearance but rarely in modern times, thanks to the more regular and efficient governments and to the more advanced state of the law of war. From the freebooter at sea arose the privateer, for the privateer is a commissioned freebooter, or the freebooter taken into the service of the government by the letter of marque.... Wherever the freebooter is taken, at sea or on land, death is inflicted upon him now as in former times, for freebooters are nothing less than armed robbers of the most dangerous and criminal type."   

The privateer, a kind of state-sanctioned pirate, highlights the elusive but implacable distinction between legal and illegal combatant. The bonafide pirate -- the genuinely "private" privateer -- has typically been described with the same rhetoric of exceptionality today applied to the terrorist, as someone who, in the words of Sir William Blackstone, "is an offence against the universal law of society," and who "has reduced himself afresh to the savage state of nature." It is striking to note how Article I, section 8 of the Constitution, in two sequential clauses of unmistakable symmetry, gives to Congress the power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," and also, "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." The archaic term "letter of marque," as Lieber's text also indicates, refers to the practice of authorizing a naval privateer to attack the enemies of a state and thus (according to the Oxford English Dictionary) "to commit acts which would otherwise have constituted piracy." In effect, state sovereignty literally consists at once of the power to punish and to commit piracy.  Terrorism also presents the sovereign state with an image of its own essential violence, which in turn calls forth the violent exceptionality of the state's response.

Such a conclusion is no mere theoretical sophistry or legal technicality, as seen in the public discourse surrounding the "war on terrorism." Speaking on NPR, the famous law professor Alan Dershowitz defended the arrest of two female relatives of Izzat Ibrahim al-Duri, the former top adviser to Saddam Hussein accused of involvement in recent attacks on US forces in Iraq. "It's never permissible under international law or under American domestic law to hold an innocent person in order to put pressure on a relative or a guilty person," Dershowitz began by conceding, "but the United States is experimenting with what might generously be called creative approaches to the problem of terrorist prevention." Such "creative" approaches are justified, he goes on to suggest, "because international law wasn't written for terrorism." Dershowitz is quite wrong on this point as a matter of historical fact, as the above analysis of the Lieber Code shows. Yet his frank embrace of this particular transgression of international law is wholly in keeping with the underlying assumptions of that system. Perhaps even more strikingly, New York Times columnist David Brooks excused "the brutal measures our own troops will have to adopt" in fighting the war in Iraq. Because the US military is fighting people who "survive only by cruelty," he claimed, it will have to respond with what he frankly calls "atrocities."

SOVEREIGNTY AGAINST ITSELF

The act of sovereignty that captures the Guantánamo detainees only to push them beyond the reach and protection of the sovereign state is the very manifestation of the existing state system and its corollary values. Critics are confronted with a Hobson's choice between attempting to limit or suspend the exercise of sovereignty through increasing legal regulation or endorsing the exercise of sovereignty as a necessary corrective to injustice (as in the king's or executive's pardon). On this point, progressive legal theorists have been split. But the ultimate answer cannot lie solely in the enforcement of existing international law and the production of yet more international documents within the same framework, nor in the tenuous hope for occasional exceptions to that sovereign exceptionality that is always the essential form of sovereign power. International law alone will never avail, and not merely because its own logic always holds in reserve a right to the same indiscriminate violence that it condemns in the guerrilla, the pirate or the terrorist. Sovereignty is the principle and activity that founds the state, and therefore constitutes its innermost and outermost possibility. The sovereign black hole, loophole or zone of legal limbo is foundational for the existing juridico-political order. Even more broadly, within that order, the absolute end of sovereignty is unthinkable. Without sovereignty, no decisions; and without decisions, no justice. 

Since sovereignty itself is inevitable, yet particular instances of sovereign power must still be confronted and challenged, critics of the current situation must assume a double responsibility. On the one hand, the present resources of national and international law must indeed be pursued to their limits, to discover and interpret precedents for the urgent decisions of the day, and, more importantly, to set new precedents for decisions still to come. But on the other hand, since law itself cannot in principle ever be adequate to the full enormity of Guantánamo, sovereignty itself must be torqued in a strange reversal, and made to work against itself. In other words, the sovereignty of strong states with the power to decide global matters -- the sovereignty that is, after all, finally a collective force, a power "of the people, by the people and for the people" -- must be expended without reserve in the name, not of law, but of justice, to the point where the territory and its boundary trembles. Such is not a mechanism or method which might be codified, because it will involve sovereign (and hence unprecedented) acts and decisions; and because its goal is a justice understood as an infinite task of thinking our relation to the Other. But as Jacques Derrida suggests, "the fact that law is deconstructible is not bad news"; rather, one can "find in this the political chance to all historical progress." All this is perhaps difficult to imagine in a world so dominated by reasons of state and the fanaticism of borders and identities. But the urgency of the task can hardly be overstated. At any rate, one thing is clear: at Guantánamo Bay, as Walt Kelly once observed, "we have met the enemy and he is us."