President Barack Obama’s announcement on April 30 renewing his 2008 election campaign promise to close the prison camp at Guantánamo Bay, where 166 men are still being held without charge or trial, has attracted worldwide interest, but it has also diverted attention from two other highly significant issues. One is that of the juridical principles involved in any serious attempt to achieve closure, physical and political, over Guantánamo, and the other is the increasing use by the United States of drone warfare against ill-defined target populations, which is fuelling fierce anti-Americanism in at least one country where that has not been a feature hitherto.
Hunger strike
Mr. Obama now says Guantánamo is not necessary to “keep America safe”, adding that it is inefficient, damages the standing of the U.S., lessens counter-terrorism cooperation with U.S. allies, and is a “recruitment tool” for extremists. He has also asked officials to review operations at Guantánamo. The immediate cause of the announcement is probably publicity over the hunger strike at Guantánamo, which is in its third month and now involves over 100 of the detainees, at least 23 of whom are being shackled for force-feeding by nasal tubes; some are very close to death. Many have been incarcerated for 11 years already, and are rightly bitter about their continued and apparently endless detention. A senior U.S. officer involved, General John Kelly, has told Congress that the inmates were “devastated” when the President, early in his first term, backed away from closing Guantánamo and then failed to move the inmates to a federal prison on the U.S. mainland.
The restatement of the plan to close Guantánamo is, nevertheless, more than a response to the hunger strike, which started on February 6, apparently in protest against the seizure of prisoners’ belongings and guards’ alleged mishandling of inmates’ copies of the Koran. Initially, administration officials repeated what they had said during a hunger strike in 2006, claiming that the prisoners were only trying to attract media attention. Yet the President has now moved, apparently decisively, back to his earlier position, and much of what he says is accurate. At $150 million a year, Guantánamo currently costs about $900,000 per prisoner annually, in contrast to the $70,000 or so that each inmate costs the public purse even in maximum-security jails on the mainland. Secondly, the President has long known that the very existence of Guantánamo is a smear on the reputation of the United States, and his further comment that the prison is not necessary to keep his country safe implies that the release of prisoners can be resumed. Longer-term problems are also emerging, such as the deterioration of the camp’s buildings, which were meant to be temporary, and the fact that the medical staff may well lack the facilities or expertise to manage chronic conditions as the prisoners grow older.
Mr. Obama has, however, spoken only in instrumental and policy terms, and has avoided fundamental juridical principles which Guantánamo raises. The U.S. Congress has often blocked his plans to close the camp, but he has himself signed legislation restricting the transfer of detainees to other countries; this covers some of the 89 already cleared for release. Secondly, Congress has given the Department of Defense power to waive restrictions case by case, but the executive has not used that power; the legislature has also refused to fund certain relevant procedures. Furthermore, a former detainee’s lawyer, David Frakt, writing in the online journal, Jurist , notes that the National Defense Authorization Act requires a court order, such as a habeas corpus writ, before an inmate can be transferred, but that the current habeas corpus review is on the legality of detention at the time of capture and not on continued detention.
This causes a contradiction, in that even if the administration does not want to oppose habeas corpus petitions on continued detention, the Justice Department has to oppose them. In any case, if Guantánamo cases reached the federal courts, the charges would almost certainly be dismissed on the grounds of torture and other rights violations; some rights groups also hold that nasal force-feeding is torture. Moreover, the investigative journalist Jason Leopold has reported in Truthout , citing among other things research by Seton Hall University Law School, that several prisoners have also been subjected to medical experiments; the practice raises parallels with the infamous Nazi medical experiments at Auschwitz.
The problem is that successive U.S. administrations have been unable to admit that the great bulk of inmates were wrongly detained in the first place, or that most if not all have been tortured, or both. Yet the U.S. is still unwilling to capture suspected terrorists and see the cases tested in U.S. courts, instead bypassing judicial process by using its expanded drone warfare programme to attack suspected terrorist outfits elsewhere, particularly in Pakistan and Yemen. Since 2004, CIA drone attacks in Pakistan alone have killed nearly 3,500 people including about 900 civilians; the worldwide total, which includes Afghanistan, Yemen, Israel-Palestine, and Somalia, is estimated at 4,700 or more. Drone warfare has increased greatly under President Obama, though the administration started by denying the policy and only admitted its existence late in February 2013; it is still resisting Congressional requests for relevant documents. A United Nations inquiry is expected to publish its report in October, and the U.N. Human Rights Commission, which is due to debate drone warfare on May 29, calls for a global freeze on the use of drones as weapons.
Criticism of drone warfare
Drone warfare has been criticised even in the U.S.. For example, Mr. Obama’s former Assistant Secretary of State P.J. Crowley, writing for the BBC, points out that what started out as a strategic campaign against “high-value” targets has turned into tactical warfare against lower-level Taliban forces in Pakistan, undermining the civilian institutions the U.S. has spent billions trying to strengthen, and poisoning relations between the two countries; a 2012 Pew survey showed that 74 per cent of Pakistanis saw the U.S. as an “enemy.” Another domestic critic, a lawyer advising the administration on the drones policy, says Washington’s legal arguments for drones could even be used by, say, al Qaeda to justify drone attacks on the U.S.
Yet neither legal issues nor policy failures seem to make any impression on the Obama administration. U.S. drone warfare is not only contentious in international law, but is also creating fresh hatred for the U.S. in countries where Washington really needs cooperation or where there has hitherto been very little anti-Americanism. Ibrahim Mothana, a Yemeni who has submitted written testimony to the Senate Intelligence Committee, wrote in the New York Times in June 2012 that a “sense of revenge and despair” — not ideology — is driving more and more Yemenis to hate America and join radical militants. Anti-Americanism has been further strengthened because Washington’s interpretation of the law now allows attacks on any area where a suspected militant might be, irrespective of other people there; in effect, any males who seem to be of military age are targets. Even a former CIA counterterrorism official says vast areas of Yemen are becoming an Arabian equivalent of Pakistan’s Waziristan. Mothana, for his part, adds that al Qaeda in the Arabian Peninsula (AQAP) is shrewdly exploiting the situation, for example by relaxing some of its hardline religious doctrines and assisting locals with gas, electricity, and other basic services. Even Iran, sensing opportunities among disgruntled Yemenis, is now getting involved.
Self-destructive
This bewildering continuance of self-destructive policy by successive U.S. administrations can only barely be explained in terms of presidential relations with a hostile Congress, fear of adverse court rulings in fair and open trials, and the like. Those explanations leave unaddressed the question of why the U.S. repeats this failed policy again and again. Even conventional ideological explanations may not help, and perhaps some other form of inquiry is needed. Hannah Arendt wrote in On Revolution that the American revolution led to the founding of a state in opposition to the ethos of the corrupt, intrigue-ridden, feudal monarchies of late mediaeval Europe, with their doctrines of divinely ordained power and inherited privilege — or what the new Americans remembered thereof — but that the founders’ very success left them with the task of defining a whole new form of human society, something Arendt calls a novus ordo saeclorum or new secular order. Now we face the question of whether or not those who occupy that new order can cope without the concept of an enemy. If one does not exist, do they have to create one?
