2012 National Defense Authorization Act, 9/11, Clive Stafford Smith, cover, coverage, disposition, Giorgio Agamben, Glenn Greenwald, Guantánamo Bay, H.R. 1540, H.R. 1540 Sec. 1031, indefinite detention, NDAA, President Barack Obama, Simon Reid-Henry, state of exception, terrorism, zone of indistinction
Better an Iguana than a Man: On Indefinite Detention and Guantánamo Bay
Condemnation of the 2012 National Defense Authorization Act (NDAA), largely for the inclusion of what’s known as the indefinite detention clause, passed by Congress on 30 November 2011, is widespread. A New York Times editorial suggests the 2012 NDAA marks “a complete political cave-in, one that reinforces the impression of a fumbling presidency.”1 The confidence expressed by Americans and outsiders alike that the election of Obama signaled a turning point has—let us face it—eroded.
Glenn Greenwald provided sufficient analysis of the obvious ways in which the bill ventures into increasingly dangerous legal issues, so it does not seem necessary to reproduce similar explanations.2 Much of the outcry against this bill has been over the proposed legality of indefinitely detaining American citizens—the possibility of which is certainly present within the bill’s text.3 What concerns me chiefly, though, is the deployment of the legal term coverage, present within the indefinite detention bill.
In legal terms, coverage (in insurance law, at least) is meant to “hold [one] protected against a particular risk,” and an oral contract to cover that “the insured is at the present time protected against loss . . .”4 Elsewhere, the act of coverage signifies receiving “protection against or compensation or indemnification.”5 With coverage, then, comes insurance or assurance of protection, particularly in hazardous or jeopardizing situations.
The unusual use of the principle of coverage appears in the NDAA in Section 1031 (b), where such “covered individuals” include perpetrators of terrorist attacks as well as those aiding such attacks in any way. The next section (c) delineates the disposition of such individuals: indefinite detention, military trial, and the individual’s transferal elsewhere, into a different zone of jurisdiction.6
What we see happening here, and what seriously concerns me, is the deterioration of the meaning of coverage—which is to say, the deterioration of one’s rights. It is here where law, rather literally, folds in on itself. The guarantee of coverage in a bill such as this is paradoxically the guarantee of no coverage whatsoever. One “covered” under such a bill is given the right to be radically deprived of one’s rights. The law legally spews the “covered” individual outside the law.
The meaning of disposition, used as it is in the NDAA, also deteriorates. Traditionally, a disposition is “an action by a criminal justice agency, the defendant, or the court that finally settles a matter in dispute.” A disposition can occur before the matter is brought to trial, for legal authorities (the police, etc.) have the power to issue a disposition.7 Whatever the case, the disposition arrives through legal agents and resolves the manner in some way. With the NDAA, however, one’s disposition is literally a “dis-position”: a refusal to settle the disputed matter, opting instead to position the “covered” subject in an extralegal zone where resolution is suspended and denied.
I have argued elsewhere that the advent of 9/11 altered the dynamics of law in such a way that “all things are now permissible.”8 Such changes in law, in policy, in citizens’ lifestyles, are demanded for the sake of national security and in the interest of survival. Such changes are meant (theoretically, at least) to protect people from future terrorist attacks. Such laws as this bill aims to become, however, mark the completion of a terrorist act: the transformation of law and the public sphere, not by external individuals labeled terrorists, but by native lawmakers themselves. The terrorist attacks on September 11, 2001 did not end with the collapse of the second tower; it continues and culminates with the terrorizing of law in an attempt to protect ourselves against terrorism. We are now, in a startling sense, our own terrorists; we are now victims of ourselves, of our own terror.
To be surprised by this transformation (or transmogrification) of law and the public sphere is to ignore the case of Guantánamo Bay. In “Exceptional Sovereignty? Guantánamo Bay and the Re-Colonial Present,” Simon Reid-Henry9 examines the past and current situation in the detention facility in light of Giorgio Agamben’s conception of the state of exception.10 Reid-Henry reports that Guantánamo Bay is, in some ways, a miniature American city, complete with a Starbucks, a McDonald’s, a bar, and wind turbines to power everything.11
The urbanization of Guantánamo Bay, however, also has a disturbing, apartheidal layout. As visitors to Guantánamo Bay have noticed, the left side of the area is the commercialized, “civilized” section, whereas the right side, to which visitors are frequently denied access, is where the detainees are kept. The left side, then, is the zone of law, and the right side is the zone of violence, of war. From this, Reid-Henry argues that
it is by enforcing this spatial separation that violence can be deployed alongside the law. . . . Guantánamo Bay is both a site of law that operates within United States jurisdiction when that interpretation suits it . . . and a site of war . . . They might enter into a ‘zone of indistinction’ in an abstracted imagination of Guantánamo, but within the camp, it is more advantageous to keep them separate.12
The presence of the left side, the site of law, permits officials to equivocally proclaim law operates in Guantánamo Bay; such statements, though, ignore the fact that the right side, the site of war, operates as though the law’s jurisdiction ceases at the bay’s shoreline.
The layout of America itself lacks the apartheidal structure of Guantánamo Bay; nonetheless, such proposed laws as the NDAA initiate and implement the zone of indistinction by overlaying the site of war across the expansive site of law, the whole stretch of American territory. Within this space, this site, everyone is covered by the threat of non-protection, all the while within the alleged jurisdiction of law.
This paradox is seen in Guantánamo Bay itself with the difference in legal protection of iguanas compared to human beings. British lawyer Clive Stafford Smith reports on the strange discrepancy in the legal protection offered to each:
Iguanas are free enough, and if my escort accidentally runs one over it is a $10,000 fine, as US environmental laws apply in Guantánamo. On the other hand, if you feel the need to hit one of the 500 prisoners [detainees] who are now four years into their captivity it is called ‘mild non-injurious contact’ and there are no consequences.13
An iguana is an iguana in Guantánamo; that is, there is no act of differentiation that deems some as protected by law and others outside law. For prisoners (or detainees, as incarcerators, detainers, at Guantánamo insist they be called, for various legal reasons), however, the coverage offered them is such that, within their dis-position, they can suffer abuse and be indefinitely detained, for their deprivation of rights is their sole guaranteed right. Furthermore, these prisoners can suffer under the auspices that law still prevails in the place they are detained.
We should not be surprised, then, if we see America at large transformed into a zone of indistinction, a large-scale, macrocosmic Guantánamo, due largely to proposed laws such as the NDAA, laws which abnegate law itself. It is not unquestionably imminent, but we must admit it is a distinct and startling possibility. To call this possibility terrifying would be a tautology.
1 “Politics over Principle” (editorial), The New York Times 15 Dec. 2011
2 Glenn Greenwald, “Three myths about the detention bill,” Salon 16. Dec. 2011
4 Steven H. Gifts, “Cover,” Law Dictionary (Barron’s Legal Guides) (Hauppauge, NY: Barron’s, 1996)
5 “Cover,” def. 2, Merriam-Webster’s Dictionary of Law (1996 ed.)
7 “Disposition,” World of Criminal Justice, Gale (2002)
8 See my post The Wish for 9/11: Retrospective Thoughts, Ten Years on (12 Sept. 2011).
9 Simon Reid-Henry, “Exceptional Sovereignty? Guantánamo Bay and the Re-Colonial Present,” Antipode 39.4 (2007), pp. 627-648
10 Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: U of Chicago P, 2005). I briefly discuss Agamben’s notion of the state of exception in my post on 9/11.
11 Reid-Henry explains that Fidel Castro, enraged by continued U.S. presence in Cuba, isolated Guantánamo Bay by cutting off the power supply, thereby creating a need for an alternate, self-sufficient form of energy to continue U.S. operations there. See Reid-Henry, pp. 637, 641.
12 Reid-Henry, p. 642
13 Clive Stafford Smith, qtd. in Reid-Henry, p. 642