The Black Flag: Guantanamo Bay and the State of Exception

The Bush administration has made much of the presumptive novelty of the ‘war on terror’, but the selection of Guantánamo as a prison camp, the designation of its inmates as ‘unlawful combatants’ and the delineation of a regime of interrogation do not depart from the historical templates that shaped the base’s colonial history and their mobilization of legal protocols. In particular, Fleur Johns argues that:

The plight of the Guantánamo detainees is less an outcome of law’s suspension or evisceration than of elaborate regulatory efforts by a range of legal authorities. The detention camps are above all works of legal representation and classification. They are spaces where law and liberal proceduralism speak and operate in excess.

This seems to me to be exactly right; but what is the imperative behind such excess? What demands such an involuted legalism through which the law is contorted into ever more baroque distinctions? The answer is, in part, a matter of indeterminacy: the Bush administration did not speak with a single voice (until the President spoke). For far from the reactivation of the prison camps at Guantánamo signalling the retreat of law from the field of battle, there was a vigorous debate between the Departments of Defense and Justice and the State Department over the prosecution of the ‘war on terror’. Legal advisers and political principals constantly invoked legal precedents and advanced legal interpretations to support their rival claims. The result, as Christiane Wilke argues, was that Guantánamo was not placed outside the law: ‘the applicable legal regulations [were] too dense to allow such a claim’. But the result of these contending arguments – which eventually spilled over into the courts – was to confine prisoners in what Wilke calls ‘a place of rightlessness in a context that [was] not lawless’. And this supplies the other part of the explanation: the President and his closest advisers were determined to treat the prisoners at Guantánamo as legal objects rather than legal subjects in order to wage the ‘war on terror’ through their very bodies. This virulently biopolitical strategy involved indefinite detention and ‘coercive interrogation’ but, as I now show, these required the administration to mobilize two radically different, contradictory legal geographies.

Extra-territoriality and indefinite detention

The immediate objective, on which both sides seem to have agreed, was to place selected prisoners taken during the war in Afghanistan beyond the reach of any federal district court that might entertain a habeas corpus petition. A writ of habeas corpus orders a prisoner to be brought before a court to determine whether s/he has been imprisoned lawfully. Congress granted all federal courts jurisdiction under title 28 of the United States Code to issue such writs to release from custody prisoners held by state or federal agencies in violation of the Constitution. Here the ambiguous status of Guantánamo was assumed to confer a distinct advantage over other sites that had been considered to be similar to the US bases on Midway and Wake. These were former Pacific Island Trust territories administered by the United States that were included within the federal district of Hawaii. Guantánamo, it was argued, was beyond the reach of any district court because, while the United States exercised ‘complete jurisdiction’ over the base, it was ‘neither part of the United States nor a possession or territory of the United States’. One White House counsel revealed the administration’s double-speak with unusual clarity: Guantánamo’s indeterminate location ‘would eliminate an important legal ambiguity’ by denying prisoners held there access to US courts. The reactivation of 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 the supremacy of the rule of law – while simultaneously suspending ‘the principles of law and rules of evidence generally recognised in the trial of criminal cases in the United States district courts’.

This performance of the space of Guantánamo would eventually be contested. In December 2003 the US Court of Appeals for the 9th Circuit provided a radically different reading of the original lease. The majority noted that in attributing ‘ultimate sovereignty’ to Cuba, the lease implied that Cuba’s sovereignty was residual in a temporal sense, from which it followed that, during its occupation of the base, ‘the United States possesses and exercises all of the attributes of sovereignty’. Since Cuba does not retain any substantive sovereignty while the base is occupied by the United States, the court concluded that ‘sovereignty vests in the United States’, a finding which (as it recorded) is consistent with the conduct of the United States, which has routinely treated Guantánamo ‘as if it were subject to American sovereignty’. In short, the majority determined that Cuba is the reversionary sovereign while the United States is the temporary sovereign: but sovereign none the less. In June 2004, the Supreme Court in a separate case ruled that it had jurisdiction to hear habeas corpus petitions from those imprisoned at Guantánamo. The administration had contested the extra-territorial application of federal law but the majority argued that ‘[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within the territorial jurisdiction of the United States’. The majority did not think it necessary to establish sovereignty; the Achilles’ Heel of the administration’s case arose precisely because the United States exercised ‘complete jurisdiction and control’ over Guantánamo, in which case it was within the territorial jurisdiction of the United States. Since the government accepted that District Courts had jurisdiction over federal agents and other American citizens employed at Guantánamo, and since non-resident aliens had access to United States courts to hear petitions of habeas corpus, the majority found that ‘the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing’. In his dissenting opinion, however, Justice Scalia complained that in its ruling ‘the Court boldly extends the scope of the habeas statute to the four corners of the earth’. Scalia roundly dismissed arguments based on jurisdiction; what was crucial, he insisted, was that Guantánamo was not ‘a sovereign dominion’. Hence ‘the Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantánamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs’.

This was precisely their expectation. The administration’s original provisions and determinations, elaborated through a series of detailed memoranda, were designed to produce a convergence between sovereign power and governmentality through what Judith Butler describes as ‘a law that is no law, a court that is no court, a process that is no process’. She sees this as an instrumental, expedient, para-legal tactic, in which both detention and trial are determined by discretionary judgements that ‘function within a manufactured law or that manufacture law as they are performed’. ‘Guantanámo’ was taken to signify not only an ambiguous space – a grey zone over which the United States claims jurisdiction but not sovereignty – but also a place of indeterminate time:
As a territory held by the United States in perpetuity over which sovereignty is indefinitely deferred, the temporal dimensions of Guantánamo’s location make it a chillingly appropriate place for the indefinite detention of unnamed enemies in what the administration calls a perpetual war against terror.

Intimate geographies and ‘coercive interrogation’

But the imperative of indefinite detention, extending the emergency ad infinitum, jibed against a second objective that interrupted its limbo with the counter-imperative of speed. This is where battle was joined between Defense and Justice on one side and the State Department on the other. The first group argued that the ‘war on terror’ had inaugurated a new paradigm that required interrogators ‘to quickly obtain information from captured terrorists and their sponsors’, and in their view this rendered ‘obsolete [the] Geneva [Convention]’s strict limitations on questioning of enemy prisoners’. That being so – and law officers in the State Department protested that it was not so: ‘a decision that the Conventions do apply [to all parties in the war in Afghanistan] is consistent with the plain language of the Conventions and the unvaried practice of the United States’ – interrogations would have to be conducted beyond the prosecutorial reach of both the federal War Crimes Act and the Geneva Conventions. Accepting the advice of Defense and Justice, Bush declared that none of the provisions of the Geneva Conventions applied to al-Qaeda prisoners. He also accepted that he had the authority ‘under the Constitution to suspend [the] Geneva [Conventions] as between the United States and Afghanistan’, and his favoured legal advisers outlined several ways in which he might do so. Signatories to the Conventions have the right to ‘denounce’ them, but they are required to give one year’s written notice and, if this takes place during an armed conflict, their repudiation is stayed until the end of hostilities. Not surprisingly, Bush decided not to invoke this option (though he reserved the right to do so in future); he preferred the expedient of deeming Taliban prisoners to be ‘unlawful combatants’ who ‘did not qualify as prisoners of war under the Geneva Conventions’. Although there are established procedures to determine the status of prisoners taken during armed conflict, the White House insisted that these were only to be invoked where there was doubt. And in the view of the President’s inner circle, reinforced by their political theology, there could never be any doubt.

Here was sovereign power at its most naked, and when the first prisoners from Afghanistan arrived at Guantánamo Bay in January 2002, it was viscerally clear that they were to be reduced to bare life. All legal protections had been visibly withdrawn from them. Photographs of their transportation and incarceration at once displayed and reinforced their reduction to something less than human. They had been chained, gloved, ear-muffed and masked throughout their twenty-seven-hour flight, and arrived soaked in their own bodily waste. Otherwise, the chairman of the Joint Chiefs of Staff explained, they would ‘gnaw through hydraulic lines at the back of a C-17 to bring it down’. As they slowly shuffled down the ramp in their jumpsuits, one reporter wrote: ‘[They] don’t look natural. They look like giant bright orange flies’. Then were led off to their makeshift steel-mesh cages at Camp X-Ray. The Department of Defense published its own photographs of their arrival, shackled between guards, kneeling and bound, or transported on stretchers to interrogation and the camp and its cell-blocks, and Butler is surely right to conclude that this was done ‘to make known that a certain vanquishing had taken place, the reversal of national humiliation, a sign of successful vindication’.

Camp X-Ray was thrown up in a matter of weeks as a short-term expedient; it was closed in April 2002 when detainees were transferred to cells in the new, more modern Camp Delta, which was intended for long-term incarceration. It consists of four internal camps: Camps 1, 2 and 3 are maximum-security facilities in which prisoners are confined to individual cells with varying levels of restriction and privilege, and Camp 4 is a medium-security facility in which prisoners live in communal dormitories. The movement of prisoners through the four levels depends on their cooperation with their captors and, in particular, their willingness to provide intelligence of value in the ‘war on terror’. And yet a senior CIA analyst soon concluded that many of the prisoners were minor players or wholly innocent people who had been turned in by warlords and local militia, police officers and villagers to settle old scores or to receive bounties of thousands of dollars (‘This is enough money to take care of your family, your village, your tribe for the rest of your life’). This was later confirmed by a detailed analysis of Combatant Status Review Board Letters (written determinations produced by the US government) by Seton Hall Law School, which concluded that 93% of the detainees were captured not by US troops at all but by Pakistan or the Northern Alliance and turned over to US custody, and that on the government’s own admission 55% of the detainees had not committed any hostile acts against the United States or its coalition allies. Only 8% were characterized as al-Qaeda fighters, and while many were associated with the Taliban in one way or another the detainees include few if any of the ministers, governors, mayors or police chiefs who held office under the Taliban: many were simply conscripts. ‘Evidence’ used to determine their status as ‘enemy combatants’ included possession of a Kalashnikov rifle (hardly unusual in the gun-cultures of Afghanistan and the Pakistan border) or a Casio watch (capable of being used as a bomb timer) or the use of a guesthouse (commonplace in Afghanistan).

While this is truly dreadful, our horror ought not to be measured by the innocence or guilt of the prisoners – which in any case is subject to the judicial process denied to them – but by the calculated withdrawal of subjecthood from all of them. The legal determinations of the location of Guantánamo Bay worked in concert with the imaginative geographies of the ‘war on terror’ to produce what Butler calls ‘a zone of uninhabitability’:

“The exclusionary matrix by which subjects are formed requires the simultaneous production of a domain of abject beings…. The abject designates here precisely those ‘unlivable’ and ‘uninhabitable’ zones of social life which are nevertheless densely populated by those who do not enjoy the status of the subject, but whose living under the sign of the ‘unlivable’ is required to circumscribe the domain of the subject. This zone of uninhabitability will constitute the defining limit of the subject’s domain.”

If the prisoners were ‘bodies that mattered’, to continue to speak with Butler, then in Washington measures were being contemplated to ensure that they mattered only as bodies: as biopoliticized bare life. Throughout the discussion that follows, it is necessary (if extraordinarily difficult) to remember that the Bush administration insisted repeatedly that prisoners would be treated in a manner ‘consistent with’ the Geneva Conventions. But such a claim – however implausible it turns out to be – relegates the treatment of prisoners to a matter of policy not law; it is not an acknowledgement that the actions of the United States are subject to the Geneva Conventions, and this lexical slippage creates a space of executive discretion (Schmitt’s ‘decision’) that would otherwise be (and as a matter of fact is) closed by international law. It is through this space, through its performative reductions, that the abstractions of geopolitics are folded into the intimacies of the human body. For this reason, it is also necessary to keep in mind this passage from J. M. Coetzee’s Waiting for the Barbarians:

“[M]y torturers … were interested only in what it means to live in a body, as a body, a body which can entertain notions of justice only as long as it is whole and well, which very soon forgets them when its head is gripped and a pipe is pushed down its gullet and pints of salt water are poured into it until it coughs and retches and flails and voids itself.”

For it was torture that preoccupied the highest reaches of the Bush administration.

Here too Guantánamo conferred a distinctive and, so it was argued, a double advantage. First, it allowed Camp Delta to be constructed as what Joseph Margulies describes as ‘the ideal interrogation chamber’. Prisoners are at their most vulnerable when they are first captured, and the art of interrogation is to reopen that window of opportunity for productive questioning. Ideally, this requires a closed space, isolated from interruptions from the outside world – for which the island camps are ideal – so that captors may exert the greatest possible control over their captives and thereby elicit what the US Army’s Field Manual 34–52 (Intelligence Interrogation) hails as their ‘willing cooperation’. The Manual emphasizes that international law proscribes torture and coercive interrogation, and requires military interrogators to comply with the Geneva Conventions. The US Army has developed its own counter-interrogation strategies as part of its Survival, Evasion, Resistance and Escape (SERE) programmes, however, and these SERE techniques were made available to interrogators at Camp Delta. In addition, the CIA has its own handbooks which, like the SERE techniques, seek to capitalize on the prisoners’ sense of vulnerability by reproducing moments of ‘significant traumatic experience’. It is thus dismally ironic that, as Corine Hegland remarks, ‘even as the CIA was deciding that most of the prisoners at Guantánamo didn’t have much to say, Pentagon officials were getting frustrated with how little the detainees were saying’. In the summer of 2002, Alberto Gonzales, Counsel to the President and now Attorney-General, was busily considering advice from the Department of Justice about the bearing of the international Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by title 18 (Part I, Chapter 113C) of the United States Code on the conduct of interrogations outside the United States. Under §2340A of the Code, ‘whoever outside the United States commits or attempts to commit torture’ or conspires to commit torture is guilty of a criminal offence (emphasis added). This presented the White House with a real prisoner’s dilemma, of course, because Guantánamo had been selected as a site of indefinite detention because it was outside the United States. But – the second advantage of the island camps – the Department of Justice pointed out that the relevant provisions of the Code defined the United States as ‘all areas under the jurisdiction of the United States’, including all places and waters ‘continental or insular’. In addition, according to the lease, the United States exercised ‘complete jurisdiction’ over the base. Through this contorted legal geo-graphing, Guantánamo was outside the United States in order to foreclose habeas corpus petitions from prisoners held there and inside the United States in order to forestall prosecutions for torturing them. As Voltaire put it: ‘Those who can make you believe absurdities can make you commit atrocities’.

The memorandum also provided an intricate parsing of definitions of ‘torture’ that not only raised the bar at which the conjunction of violence and pain turned into torture but made this threshold the property of the torturer. First, ‘only the most extreme forms of physical or mental harm’ would constitute torture: severe pain that would ‘ordinarily’ be associated with ‘death, organ failure or serious impairment of bodily functions’, or severe mental suffering that produced ‘prolonged mental harm’. This allowed ‘a significant range of acts that though they might constitute cruel, inhuman or degrading treatment fail to rise to the level of torture’. Second, a defendant could only be convicted if these consequences were a known and intended outcome of his or her actions: ‘Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct’. If these sophistries were not enough, Gonzales was finally, implausibly but chillingly assured that ‘criminal statutes’ could not infringe on the President’s ‘complete’ and ‘ultimate’ authority over the conduct of war, including the interrogation of prisoners.

This memorandum had been prepared with CIA rather than military interrogations in mind, but the lines were already becoming blurred. In October 2002 the Joint Chiefs of Staff were presented with recommendations from the Joint Task Force charged with conducting ‘Department of Defense/ Interagency’ interrogations at Guantánamo to allow a graduated series of increasingly ‘aggressive’ techniques to be used against prisoners who had ‘tenaciously resisted’ current methods. Category I techniques involved direct questioning, yelling and deception; Category II techniques involved the use of stress positions, hooding, removal of clothing and forced shaving, and the induction of stress through aversion (‘such as fear of dogs’); Category III techniques involved convincing the prisoner that death or severe pain were imminent for him and/or his family, ‘exposure to cold weather or water’, and ‘use of a wet towel and dripping water to induce the misperception of suffocation’. The Department of Defense authorized the first two categories and noted that while all the techniques in the third category may be ‘legally available’ their approval was not warranted ‘at this time’.

If the skeletal list of approved techniques seems unremarkable, even banal, this is the result of two strategic omissions. First, the list contained no limits on the use of these techniques, and in a remarkably pointed exchange the General Counsel for the Navy, Alberto Mora, urged William Haynes, the General Counsel for the Department of Defense, ‘to think about the techniques more closely:’

“What did ‘deprivation of light and auditory stimuli’ mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What precisely did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in?”

Seen thus, Mora insisted, there was no clear line between these techniques and torture.

Second, the list was concerned entirely with instruments and provided no consideration of their effects. Since the end of the Second World War the United States has developed a consistent interrogation protocol that centres on sensory deprivation and self-inflicted pain. According to historian Alfred McCoy, ‘the method relies on simple, even banal procedures – isolation, standing, heat and cold, light and dark, noise and silence – for a systematic attack on all human senses’. Early experiments showed that subjects could stand only two or three days of being goggled, gloved and muffled in a lighted cubicle, while forced standing for eighteen to twenty-four hours produced ‘excruciating pain’ as ankles swelled, blisters erupted, heart rates soared and kidneys shut down. These ‘no-touch’ techniques leave no marks, but they create ‘a synergy of physical and psychological trauma whose sum is a hammer-blow to the fundamentals of personal identity’: they deliberately ravage the body in order to ‘un-house’ the mind. I say ‘un-house’ advisedly because, as Mark Bowden notes, torture works to make space and time, ‘the anchors of identity’, become ‘unmoored’ so that the victim is marooned in a surreal ‘landscape of persuasion’ where everything becomes ‘tangled’. If Wittgenstein was right to say that the limits of our language mean the limits of our world, then it should be clear why Elaine Scarry describes torture as a deliberate ‘unmaking’ of the world. Pain does not simply resist language – located beyond the sphere of linguistic communication – ‘but actively destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned’. If prisoners are reduced to bare life through torture, violently cast into a world beyond language, then the act of remembering their trauma is both infinitely fragile and, in its potentiality, profoundly political. For the attempt to give voice to their physical pain gives the lie to those who would ventriloquize its infliction as ‘intelligence-gathering’.

In January 2003, Secretary of Defense Donald Rumsfeld withdrew his permission for the use of Category II techniques and convened a Working Group to prepare an assessment of ‘Detainee Interrogations in the Global War on Terrorism’. Its final report was not circulated to those who had been critical of the original recommendations. In effect, the Pentagon was now pursuing what Jane Mayer describes as a ‘secret detention policy’ whose guidelines followed the memorandum of the previous August to the letter. The report found that, because Guantánamo is within the United States for the purpose of title 18, ‘the torture Statute does not apply to the conduct of US personnel at GTMO’. It reaffirmed the inadmissibility of the Geneva Conventions and noted that the US government would reject any attempt by the International Criminal Court to assert jurisdiction over US nationals. And in reaffirming the ultimate authority of the President its authors made an astonishing appeal to the precedent set by the Nuremberg tribunals: ‘The defense of superior orders will generally by available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful’. The report suggested a range of thirty-five interrogation techniques from ‘asking straightforward questions’ and providing or removing privileges through hooding, ‘mild physical contact’ and dietary or environmental manipulation to ‘exceptional’ measures that included isolation, twenty-hour interrogations, forced shaving, prolonged standing, sleep deprivation, ‘quick, glancing slaps’, removal of clothing and ‘use of aversions’ (‘simple presence of dog’). Rumsfeld approved twenty-four of them. Although he withheld approval of all the ‘exceptional’ measures other than isolation, however, the list of authorized techniques contained none of the crucial limitations and said nothing about their effects. There was thus considerable latitude for coercive interrogation to slide through cruel, inhuman and degrading treatment into outright torture. If this were not enough, Rumsfeld also accepted that ‘interrogators [ought to be] provided with reasonable latitude to vary techniques’ for reasons that included the degree of resistance and ‘the urgency of obtaining information’.

I have no way of knowing how much ‘latitude’ that final clause was intended to allow; I simply make two observations. First, testimony from prisoners released from Guantánamo makes it clear that the red lines, such as they were, were repeatedly crossed. There have been consistent, credible reports of enforced nudity; exposure to extremes of temperature; deprivation of food, water and pain medication; induced disorientation through loud music, strobe lighting and sleep deprivation; menacing by dogs; prolonged short-shackling in foetal positions; sexual taunting and assault; immersion in toilet bowls to induce a fear of drowning; and isolation for months at a time. Second, notwithstanding the limitations placed on military interrogations, the CIA had been authorized to use six ‘enhanced’ techniques since March 2002, which included forcing prisoners to stand, handcuffed and shackled, for more than forty hours; forcing them to stand naked in a cold cell for prolonged periods and frequently dousing them with cold water; and simulated drowning (‘waterboarding’). The CIA ran its own prison within the complex (within Camp Echo, which was built to house detainees who were awaiting hearings before Military Commissions), but the CIA and the military frequently worked in concert because Guantánamo was the designated operating base for a Joint Interagency Interrogation Facility. In an interview following the three suicides, McCoy put it like this:

“Guantánamo is not a conventional military prison. It’s an ad hoc laboratory for the perfection of CIA psychological torture. Guantánamo is a complete construction. It’s a system of total psychological torture, designed to break down every detainee contained therein, designed to produce a state of hopelessness and despair.”

Indeed, the commander of JTF Guantánamo, Major- General Geoffrey Miller, described the facility as a central ‘laboratory for the war on terror’. In September 2003 he led a specialist team to Iraq to assess the Army’s detention and interrogation operations, and recommended the introduction of ‘new approaches and operational art’ developed at Guantánamo to facilitate the ‘rapid exploitation’ of prisoners for ‘actionable intelligence’. By the winter of 2003 to 2004, journalist Seymour Hersh concluded, ‘Abu Ghraib had become, in effect, another Guantánamo’.

During the summer of 2005, when Senator John McCain proposed an amendment to the Defense Appropriation Bill that would ban cruel, inhuman or degrading treatment or punishment of anyone in US custody anywhere, the Vice-President insisted that the CIA should be exempt – it required ‘extra latitude’ (that word again) – and the White House vigorously rejected any such measure that would ‘restrict the President’s authority [not ability] to protect Americans from terrorist attack’. The bill passed the Senate 90–99 and the House 308–122, but when the President reluctantly signed the Detainee Treatment Act into law at the year’s end he added a defiant signing statement insisting that he would interpret its provisions in a manner consistent with ‘constitutional limitations on the judicial power’ and his own executive powers to protect national security, and he made it clear that he reserved the right to waive those restrictions in ‘special situations’. Thus the hermeneutic circle – the mutuality of interpretation – is hammered flat until it fits the Oval Office.

However, it turns out that the Act contained its own Catch-22 inserted by Senator Lindsey Graham. In March 2006 lawyers for the Department of Justice reminded a district court that, under the provisions of the Act, prisoners at Guantánamo only had the right to appeal their designation as enemy combatants – not to seek protection against their treatment there. As Human Rights Watch put it, ‘The law says you can’t torture detainees at Guantánamo, but it also says you can’t enforce that law in the courts’.

The global war prison

I hope this analysis helps to explain why three young men imprisoned at Guantánamo took their own lives, and why the Bush administration (at various levels) responded in the way it did. After the three suicides, the President announced that he would like to close Guantánamo because it gave critics what he called ‘an excuse’ to say that the United States was not upholding the very values it claimed to be defending. In fact, transfers to the island camps were suspended in September 2004, and there are plans to transfer many detainees to other sites in the global war prison. But this does not herald the end of Guantánamo.

Soon after the Supreme Court ruled in Rasul v. Bush in June 2004 that federal courts could hear habeas corpus petitions from those imprisoned at Guantánamo, the National Security Council halted transfers from Afghanistan, and the Pentagon ordered the expansion of its prison at Bagram 50km north of Kabul. In 2002 the US Army had converted a vast machine shop at the former Soviet aircraft maintenance base into a short-term collection and screening centre (‘Bagram Temporary Internment Facility’). Its purpose was to interrogate prisoners transported forward from operating bases elsewhere in Afghanistan, who would then be released, imprisoned in Afghan jails or transferred to Guantánamo. This makes the process seem more systematic than it was; subsequent investigations concluded that the new, ‘non-linear battlespace’ required considerable improvisation in the management of prisoners, and this resulted in the development of ad hoc procedures, serious mistakes in screening prisoners, and extraordinary delays in releasing those detained by mistake. In March 2004 175 people were held at Bagram in wretched conditions. An inspection found that the building had inadequate ventilation, sanitation and lighting, and that its roof had multiple leaks. The capacity of the makeshift prison was 275, but during the following year, after the flights to Guantánamo were suspended, it held as as many as 600 people at any one time. Since the President had decreed that the Geneva Conventions would not apply to those taken prisoner during the war in Afghanistan, the US military referred to them not as prisoners of war but ‘Persons Under Control’ (PUC). They were held in large wire cages, and the conditions remained rudimentary. One former prisoner described the compound as being ‘like the cages in Karachi [Zoo] where they put animals’. Significantly, the Pentagon has released no images of its detention operations at Bagram, unlike those at Guantánamo, and its slick web page on ‘detainee affairs’ is silent about conditions there. More: since the Rasul decision was limited to Guantánamo, prisoners at Bagram continue to have no habeas rights; they are not allowed to appear before the military panels reviewing their continued imprisonment; they have no right to hear the allegations against them; and they have been denied access to lawyers. Camp XRay may have closed at Guantánamo, but for all practical purposes it has been transplanted to Bagram. As the Taliban resurgence continues to gain strength, and British and Canadian troops conduct ever more aggressive counter-insurgency operations in the southern countryside, the number of prisoners held there is likely to increase. It is impossible to be precise, however, because no details about the transfer of prisoners from coalition to American custody have been released and the prison remains shrouded in secrecy.

By the spring of 2005 it was clear to two reporters that the wheel had turned full circle and that Bagram was part of a radical plan to reconfigure the global war prison. In the summer, negotiations were under way to transfer those who would no longer be held at Guantánamo to Afghanistan, Saudi Arabia and Yemen, where they would be incarcerated in new maximum-security jails financed and constructed by the United States. In April 2006 the Pentagon announced that it planned to repatriate a further 140 prisoners ‘who have been determined to be no longer enemy combatants’. But the State Department announced that they would not be released until it was satisfied that they would be treated humanely on their return. Particular concern was expressed about Algeria, Egypt, Saudi Arabia, Uzbekistan and Yemen. According to one official, ‘We don’t want to send people to a country where we are going to find out two weeks later that they’ve been tortured’. This is particularly rich coming from an administration that has done everything in its power to facilitate the torture of prisoners in its own camps, but it is stupefying when Guantánamo is wired to the system of extraordinary renditions through which prisoners are made to disappear to torture chambers in those same countries (and others) or to a network of CIA ‘black sites’ for ‘enhanced interrogation’.

To date, 267 prisoners have been released from Guantánamo and eighty more have been transferred to their own countries for continued detention. But this is not a process of emptying the island prison. On the contrary; around 470 people remain incarcerated, and construction of new camps has continued. Two new maximum-security camps have been designated for the indefinite, potentially permanent detention of suspected members of al- Qaeda and other terrorist groups who, it was originally announced, were unlikely to go before a military tribunal for lack of evidence but whom the administration ‘does not want to set free or turn over to courts in the United States or other countries’. Camp 5 opened in May 2004 and an even larger Camp 6 was scheduled for completion by September 2006. Together the two will house around 300 prisoners. In September 2006 fourteen prisoners were transferred from the CIA’s black sites to Guantánamo, and the President insisted that they would be tried before military tribunals. He defended the ‘alternative set of procedures’ to which they had been subjected in CIA custody as ‘safe, lawful and necessary’, and it is hardly surprising that he was equally adamant that the tribunals would admit evidence obtained through ‘coercive interrogation’.

The aggrandizement of sovereign power is characteristic of colonial regimes, and the obsession with torture is a commonplace of colonial violence. These colonial dispositions are marginalized by Agamben’s metropolitan predilections, but there are intimate connections between the methods used by the United States and those used by France in Algeria, Britain in Africa and Israel in Palestine. In addition, from the School of the Americas (now the Western Hemisphere Institute for Security Cooperation), originally based in Panama and since 1984 at Fort Benning in Columbus, Georgia, the United States has trained more than 60 000 soldiers and police officers from the Caribbean and Central and South America in counter-insurgency methods that include coercive interrogation and torture.

All of this matters because, while I think Agamben is wrong to represent the space of exception as the paradigmatic space of political modernity, I do believe it is a potential space whose artful brutalities must be – and are being – resisted at every turn. To repeat: there is nothing ineluctable about the triumph of the security state or the generalization of the space of exception, and I conclude in that spirit by hoisting a different black flag over Guantánamo Bay. Howard Ehrlich celebrates the anarchist flag with these words:

“The black flag is the negation of all flags. It is a negation of nationhood which puts the human race against itself and denies the unity of all humankind. Black is a mood of anger and outrage at all the hideous crimes against humanity perpetrated in the name of allegiance to one state or another….

Black is also a color of mourning; the black flag which cancels out the nation also mourns its victims, the countless millions murdered in wars, external and internal… But black is also beautiful. It is a color of determination, of resolve, of strength, a color by which all others are clarified and defined.”

Let us make it so.