So President Bush signs the McCain amendment outlawing cruel, inhuman and degrading treatment of prisoners in US custody and then adds a â€˜signing statementâ€™ to say that he will continue to do as he likes. What a surprise!
Itâ€™s become a commonplace to note how the Bush regime selected GuantÃ¡namo Bay as the location for its prison camp during the invasion of Afghanistan because, according to the terms of the original lease, the Naval Station was outside the United States. Cuba continued to exercise â€˜ultimate sovereigntyâ€™ over the area but, unless and until it chose to withdraw its occupation forces, the United States would exercise â€˜complete jurisdiction and control.â€™ If this were accepted â€“ and eventually the Supreme Court didnâ€™t accept it â€“ then no federal court would be able to entertain a habeas corpus petition on behalf of the prisoners held there. They would continue to be held at the pleasure of the US government. Other possible sites â€“ like US bases on the islands of Midway and Wake â€“ had been rejected precisely because they were included within the federal district of Hawaii.
All this was put in place in a series of memoranda from the US Department of Justice in November and December 2001. But by the summer of 2002 Alberto Gonzales, then Counsel to the President and now Attorney-General, had requested and received advice from the Department of Justice about the bearing of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by title 18 of the United States Code on the conduct of interrogations outside the United States. Alarm bells must have been ringingâ€¦. The response from Justice was that title 18 only applied to torture outside the United States, and a footnote recorded that title 18 defined the United States as â€˜all areas under the jurisdiction of the United Statesâ€™, including all places and waters â€˜continental or insularâ€™.
In other words, GuantÃ¡namo Bay, which had been located outside the United States to prevent prisoners protesting their imprisonment there, was now declared to be within the United States to prevent prosecutions for torturing them. As Voltaire put it, â€˜Those who can make you believe absurdities can make you commit atrocities.â€™
This memorandum was prepared expressly for the CIA, but in January 2003 the Department of Defense convened an in-house Working Group to prepare an assessment of â€˜Detainee Interrogations in the Global War on Terrorismâ€™. Its report followed the August memorandum to the letter. It also affirmed the ultimate authority of the President and sought a series of historical precedents to further protect US troops from prosecution for torture. This included an astonishing and explicit appeal to the Nuremberg tribunals: â€˜The defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional, interrogations except where the conduct goes so far as to be patently unlawful.â€™ Those last two words had been eviscerated by the administrationâ€™s parsing of what constitutes torture, and one has to ask what sort of regime underwrites its conduct through an appeal to the Third Reich?
Thereâ€™s more. In March 2004 Gonzales wanted to know about the permissibility of transferring prisoners who had been captured in Iraq outside the country. This is explicitly proscribed by the Geneva Conventions â€“ again with one eye on the mass deportations and the Nacht und Nebel policies of the Reich â€“ but this did not deter the legal cartographers within the Department of Justice. Their argument included a surreal appeal to Iraqâ€™ s own immigration law which, unlike virtually every other law on Iraqâ€™s statute books, apparently could not be ignored or suspended by the occupying powers. On the contrary. Those who had entered the country illegally were, according to this law, liable to imprisonment and deportation. It seems unlikely that the drafters of the statute entertained the possibility that these two measures could be coincident, but GuantÃ¡namo and the CIAâ€™s â€˜black sitesâ€™ made it possible for the United State to simultaneously deport and imprison (and torture) those who fell foul of the law.
This evidently did not include all the â€˜foreign fightersâ€™ in US Army uniforms who had also entered Iraq illegally â€“ but that would have required an expansion of GuantÃ¡namo beyond even the Presidentâ€™s wildest dreams.
Derek Gregory is Distinguished University Scholar and Professor of Geography at the University of British Columbia at Vancouver. He is the author of The Colonial Present: Afghanistan, Palestine, Iraq (Blackwell, 2004).