Guantánamo's imperial past on its 10-year anniversary

After a decade, this detention centre remains on the wrong side of the law.

For the 11 men who were among the first to arrive at Guantánamo, a full decade has now passed in captivity. This is longer than any wartime prisoners have been held in US history and the anniversary has rightly prompted a good deal of speculation as to when and how they might be released.

While some progress has been made under Barack Obama, there have been at least as many setbacks -- and in some cases new and further human rights violations. According to Human Rights Watch, when Obama took office in 2009 there were 242 men still languishing there. Of the 171 prisoners who remain, there are now plans to prosecute just 32, to detain a further 46 indefinitely without charge or trial, and to relocate just 89. That leaves the remaining five who are accused of planning the September 11 attacks, plus one other against whom charges are pending. As the American lawyer Mark Denbeaux said when I heard him speak just before Christmas: "This is no longer a case of detention without trial, it is a case of detention despite trial"; despite trial and acquittal, that is.

Clearly the fate of these men is to be set before all other considerations. But today's anniversary also raises the greater historical problem of Guantánamo: namely, that it may no longer be the exception but the norm.

There are two aspects to this. The first concerns what Guantánamo has established as acceptable over the past ten years. A full history of the US's ongoing construction of a legal carapace about the camp remains to be written. But when it is, we will see much more clearly how what was initially intended to be a delimited enclave of lawlessness has since -- and not without some irony -- drained its poison back into the US political and judicial system itself.

Initially, as with the US Courts' refusal to entertain the first habeas corpus challenges coming from Guantánamo, there were attempts to staunch the flow: to keep the problems of Guantánamo largely offshore. More recently the US government has dreamt up a whole alternative legal system centred upon the much-maligned military tribunals, as both George W. Bush and Obama alike sought to contain the first of the leaks that sprang from Guantánamo's legal quagmire. Yet their attempts have consistently failed, precisely because in the effort to keep pinching its nose of the problem, the US legal system has itself increasingly disregarded the law.

The Court of Appeals for the District of Colombia, for example, has ruled in many cases that detainees should be released. But it has never actually ordered that they be so, preferring to leave their fate to the pardoning flourish of Obama's own pen. Yet he, in turn, finds that his hands are tied by the madnesses of his own cockatoo Congress who demand that any recipient nation taking in detainees from Guantánamo must provide such vouchsafes for the detainees' future behaviour as are impossible in any rational world to expect. This is why the dozens of Yemenis cleared for release to Yemen have not yet actually been allowed to return.

But Obama cannot merely point to Congress and hope to wash his hands of it. With the passing of the National Defense Authorisation Bill at the end of last year, he has himself further codified the practice of detention without trial. Thus has Guantánamo's cancer of justice worked its way back to the very top, as Obama comes to rely ever more heavily on Bush era legislation, like the Authorization to Use Military Force (AUMF), to defend his own tarnished record. Yes, he scrubbed the phrase "enemy combatant" from the rulebook, but then he went and replaced it with the yet more Orwellian "unprivileged enemy belligerent".

Unprivileged they most certainly are. But trying to understand why requires another sort of historical reflection too -- one that takes into account not just the past ten but the past one hundred and ten years since Guantanamo, first established by the Americans on Cuban land that they awarded to themselves, came into being. As the historian Jana Lipmann has pointed out, calls to close Guantánamo almost never refer to the base, only to the camp. Yet the camp itself is only possible because of its location in this rump of an imperial enclave.

This is partly what Bush's lawyers argued too, of course, when trying to justify why US laws (like the right to a trial) should not apply to Guantánamo. But there are other ways in which the place of Guantánamo itself matters to what is still being done there today. And one of the least well-recognised of these is the latitude that it gives to imperial (viz. dehumanizing) ways of thinking.

As scholars like Amy Kaplan have pointed out, Guantánamo's imperial past is constantly reactivated in what the geographer Derek Gregory would term its "colonial present". The bestialisation of its inmates is one example: from the moment they arrive in goggles and boiler suits -- "like giant orange flies", it has been said -- to their subsequent confrontations with the camp dogs. And this favoured imperial trope is present in their legal treatment too: "I think Guantánamo, everyone agrees, is an animal," said Supreme Court Justice Ruth Ginsburg back in 2004, when she and her colleagues were trying to come to a ruling on the place.

On the day of Guantánamo's 10-year anniversary as an illegal detention centre, a more coolly arrived at ruling is needed now more than ever before. America needs to recognise this and to get on the right side of history in the process. Congress in particular needs to recognise that its principal reason for not letting people out is the same argument that was used against the abolition of slavery. It needs to recognise -- as do the American judiciary and the executive, and indeed those European nations complicit in extraordinary rendition, who have promised to take in detainees only to throw up all number of practical obstacles since -- the simple truth in what I recently heard one of the Guantanamo lawyers point out: in the long run, "The only way to close Guantánamo down is by first of all opening it up."

Simon Reid-Henry is a lecturer at Queen Mary, University of London

Photo: André Spicer
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“It’s scary to do it again”: the five-year-old fined £150 for running a lemonade stand

Enforcement officers penalised a child selling home-made lemonade in the street. Her father tells the full story. 

It was a lively Saturday afternoon in east London’s Mile End. Groups of people streamed through residential streets on their way to a music festival in the local park; booming bass could be heard from the surrounding houses.

One five-year-old girl who lived in the area had an idea. She had been to her school’s summer fête recently and looked longingly at the stalls. She loved the idea of setting up her own stall, and today was a good day for it.

“She eventually came round to the idea of selling lemonade,” her father André Spicer tells me. So he and his daughter went to their local shop to buy some lemons. They mixed a few jugs of lemonade, the girl made a fetching A4 sign with some lemons drawn on it – 50p for a small cup, £1 for a large – and they carried a table from home to the end of their road. 

“People suddenly started coming up and buying stuff, pretty quickly, and they were very happy,” Spicer recalls. “People looked overjoyed at this cute little girl on the side of the road – community feel and all that sort of stuff.”

But the heart-warming scene was soon interrupted. After about half an hour of what Spicer describes as “brisk” trade – his daughter’s recipe secret was some mint and a little bit of cucumber, for a “bit of a British touch” – four enforcement officers came striding up to the stand.

Three were in uniform, and one was in plain clothes. One uniformed officer turned the camera on his vest on, and began reciting a legal script at the weeping five-year-old.

“You’re trading without a licence, pursuant to x, y, z act and blah dah dah dah, really going through a script,” Spicer tells me, saying they showed no compassion for his daughter. “This is my job, I’m doing it and that’s it, basically.”

The girl burst into tears the moment they arrived.

“Officials have some degree of intimidation. I’m a grown adult, so I wasn’t super intimidated, but I was a bit shocked,” says Spicer. “But my daughter was intimidated. She started crying straight away.”

As they continued to recite their legalese, her father picked her up to try to comfort her – but that didn’t stop the officers giving her stall a £150 fine and handing them a penalty notice. “TRADING WITHOUT LICENCE,” it screamed.


Picture: André Spicer

“She was crying and repeating, ‘I’ve done a bad thing’,” says Spicer. “As we walked home, I had to try and convince her that it wasn’t her, it wasn’t her fault. It wasn’t her who had done something bad.”

She cried all the way home, and it wasn’t until she watched her favourite film, Brave, that she calmed down. It was then that Spicer suggested next time they would “do it all correctly”, get a permit, and set up another stand.

“No, I don’t want to, it’s a bit scary to do it again,” she replied. Her father hopes that “she’ll be able to get over it”, and that her enterprising spirit will return.

The Council has since apologised and cancelled the fine, and called on its officials to “show common sense and to use their powers sensibly”.

But Spicer felt “there’s a bigger principle here”, and wrote a piece for the Telegraph arguing that children in modern Britain are too restricted.

He would “absolutely” encourage his daughter to set up another stall, and “I’d encourage other people to go and do it as well. It’s a great way to spend a bit of time with the kids in the holidays, and they might learn something.”

A fitting reminder of the great life lesson: when life gives you a fixed penalty notice, make lemonade.

Anoosh Chakelian is senior writer at the New Statesman.