Last week marked the anniversary of the Trump-led authoritarian assault on the U.S. Capitol and a bedrock principle of the rule of law—the orderly transfer of executive power based on popular will. While that menacing event is in clear focus, it is worth reflecting on an institution and ideology that both presaged and accelerated our current authoritarian moment: twenty years ago today, the administration of U.S. president George W. Bush opened an offshore military prison in Guantánamo Bay, Cuba, for the purposes of detaining and torturing Muslim men and boys without legal constraint. Two decades on, the architects of this regime and the perpetrators of torture have not been held accountable, and thirty-nine men are still detained on the island, with no end in sight.
A central component of the Bush administration’s reckless prosecution of a “Global War on Terror,” Guantánamo crystallizes the transformation of the United States into a maximal security state. The prison’s insidious legacy should not be allowed to fade from public awareness. Guantánamo’s authoritarian essence—its flagrant disdain for fundamental human rights protections, along with the destruction and dehumanization it has wrought upon its victims—has been variously interpreted as more or less exceptional, more or less beyond the pale of American norms and ideals. As a young lawyer I was impelled by this vision of Guantánamo’s exceptional breach of fundamental principles, but after nearly eighteen years litigating on behalf of detainees, I have come to know better. Guantánamo is not the island we may like to think it is. It not only extends a shameful history of American brutalization of the Other; its creation and defense also foreshadowed the more recent and muscular embrace of anti-constitutionalism and lawlessness we know today.
Years of litigation and reporting leave no doubt about Guantánamo’s function. The plans for the prison were formulated in the months following Congress’s 2001 Authorization for Use of Military Force, which became law a week after the September 11 attacks and remains in effect today. In December that year, Department of Justice lawyers John Yoo and Patrick Philbin sent a memo to Department of Defense General Counsel William J. Haynes II identifying Guantánamo as a promising detention location because it likely could evade the habeas corpus jurisdiction of U.S. civilian courts.
Shamelessly providing cover for Defense Department official to act without judicial scrutiny, Yoo and Philbin observed that evasion was necessary in order to avoid the “jurisdiction of U.S. courts” and the risk of triggering protections such as those codified in the Geneva Conventions and thus of disrupting “the system that has been developed to address the detainment and trial of enemy aliens.” In the following years, carving out a new category of “unlawful enemy combatants” beyond the reach of international law and developing his particular brand of so-called “unitary executive theory,” Yoo went on to author the notorious “Torture Memos,” slavishly granting military authorities legal cover for a “system” of “enhanced interrogation techniques.” Having faced no legal or professional repercussions for these actions, this auteur of America’s torture archipelago is now a tenured law professor at the University of California, Berkeley, and ideological soulmate of fellow Federalist Society radical and insurrectionist lawyer, John Eastman, who crafted equally bankrupt justifications for nullifying the election results, and spoke at the “Save the America” rally hours before the storming of the Capitol on January 6.
This early evidence makes plain that Guantánamo was never about adjudicating guilt or innocence or meting out just punishment for war crimes; it was constructed as a domain of absolute power unaccountable to U.S. judges or international human rights protections precisely in order to undertake endless brutal interrogations, to induce through totalizing disorientation and control what CIA interrogation manuals call “debility, dependency, and dread.” By denying detainees access to courts and to counsel, the Bush administration rejected any legal constraint on its actions, forsaking law for unfettered will, discretion, and power.
With this abandonment of law and the foreclosing of the prospect of litigation, the administration pursued the basic goal of all authoritarian systems: to instill hopelessness by projecting total power and control. Documents from the time make this aim explicit. Five months after Guantánamo opened, in May 2002, José Padilla was arrested by U.S. Customs agents in Chicago on suspicion of plotting a radiological bomb. (The suspicion was wrong, and it was based on the torture of a detainee in CIA custody.) After being held for a month as a material witness regarding a 9/11 warrant issued in New York, just two days before federal court proceedings to adjudicate the legality of his detention, Padilla was denominated an “enemy combatant” by Defense Secretary Donald Rumsfeld, snatched from Justice Department custody, and placed in a military brig in South Carolina without notice to the court or his appointed counsel. A high-level Defense Department official submitted an affidavit insisting that Padilla be denied access to counsel: a successful interrogation needed total dependence upon the interrogator , the official argued, which thereby required that Padilla be made to feel that “help is not on the way.” (Legal help eventually came, but not before the military’s brutalizing torture and isolation devastated Padilla, physically and psychologically.) Likewise, in the early years of Guantánamo’s operations, one interrogator told a Bosnian detainee at Guantánamo, “You are in a place where there is no law. We are the law.”
Authoritarian regimes—from apartheid South Africa and Nazi Germany to the Soviet Union and the Jim Crow South—typically make recourse to the law for a tincture of legitimacy, but this appeal rests upon the law of raw authority and not the law of morally grounded jurisprudential principles. In the case of Guantánamo, the Bush administration claimed authority conferred by international law that in certain circumstances permits indefinite detention of enemy belligerents in order to prevent their return to the battlefield. At the same time, however, the administration rejected conditions circumscribing that authority, specified in part by the Geneva Conventions—including a neutral assessment of whether the apprehended was in fact a combatant and the fundamental mandate of humane treatment while in detention. One measure of the nefariousness of this program can be seen in the fact that thousands of such battlefield hearings in the 1991 Gulf war led to mass releases of civilians. The architects of Guantánamo, focused on power and not legitimating law, simply disregarded this elementary protection of international law.
Narrative far outpaced law as a legitimating force for Guantánamo, though both proceeded on mythical tracks. One central narrative spun by senior Bush administration officials was that these detainees were the “worst of the worst,” “hardened terrorists” responsible for 9/11, or, in one general’s phrasing, so dangerous they would “gnaw through hydraulic lines in the back of a C-17 to bring it down.” Numerous intelligence officials knew these claims were false as early as 2003, and over time even very basic scrutiny of the detentions demonstrated that the overwhelming majority of detainees had no ties to terrorism. The depiction succeeded, however, because it mapped onto the Bush administration’s broader portrayal of a mysterious, conspiratorial enemy that lurked everywhere in the shadows with unbridled hatred and power, collapsing a vast world religion into an orientalist cast—one according to which all adherents have a presumptive ideological commitment to evil. The rank exceptionalism and distortions the United States claimed for itself (“they hate us for our freedom”) would validate our rejection of global human rights principles and enable millions to turn a blind eye toward brutalizing torture and catastrophic military campaigns that devastated Muslim civilian populations. The Geneva Conventions, Attorney General Alberto Gonzales determined, were too “quaint” to endure, as if Taliban soldiers were more menacing than the Nazi soldiers to whom the United States had afforded law-of-war protections sixty years earlier.
At the same time, a month after opening Guantánamo, Bush told senior members of his administration that, quaint legalities aside, the detainees were and would be treated “humanely.” This posturing barely obscured what the administration was otherwise loudly broadcasting through the mumbled voice of Bush’s vice president, Dick Cheney: that the country would have to “work” on “the dark side,” as he told Tim Russert on Meet the Press two weeks after 9/11. The administration knew full well how to feed the nation’s existential need to discipline and punish people of color: having constructed an iconography of Muslim terror, the administration convinced a willing public that it had to be suppressed. The month Guantánamo opened, military photographers released multiple pictures of goggled, bound men, tied together like cattle in a military transport plane and sitting prostrate in orange jumpsuits near the outdoor cages of the base’s Camp X-Ray. Depicting the detainees as prone, bound, and defenseless, these pictures would help the Bush administration atone for—or at least distract from—its catastrophic failure to anticipate or prevent the 9/11 attacks: American retribution, they were clearly meant to convey, was being meted out.
Behind these pictures, it was not hard to assume that brutal interrogation techniques were taking place—techniques that we now know lawyers were indeed busy legitimating and that were tested, refined, and charted, making the prison one big torture experiment, as Jane Mayer has reported. Long before Adam Serwer correctly observed that “the cruelty is the point” of Trump’s escalating stratagem of vilification and repression of Black people and immigrants, the Bush administration was carrying out a program premised on the same ugly thread running through U.S. history: white people feel safer and freer when they dominate the Other.
It has taken decades of litigation to bring these gross abuses and arrogations of power to light and to seek, all too slowly, even the most remedial human rights protections for those detained at Guantánamo. In February 2002, just weeks after the first detainees were transported to the prison, the Center for Constitutional Rights (CCR), led by the late, renowned anti-imperialist lawyer Michael Ratner, filed the first legal challenge to the military detention of men in Guantánamo.
The first cases were styled in the form of writs of habeas corpus on behalf of clients detained without access to counsel who did not even know they had lawyers, invoking the centuries-old requirement that the executive come forth with a lawful basis for detention. Filed while embers at the World Trade Center were still smoldering, and amidst the bellicose rhetoric of the Bush administration, these efforts seemed hopeless; nevertheless, Ratner knew that Guantánamo and its claim to total executive power represented an existential breach of democratic norms so profound that the cases warranted filing “100% on principle.” They were indeed quickly dismissed by the lower courts on the grounds that U.S. courts had no jurisdiction over foreign nationals in Cuba, but in late 2003 the Supreme Court—perhaps increasingly skeptical of the Bush administration’s persistent claims to absolute executive power—agreed to hear the issue. While the lawyers framed the question presented to the Court around technical jurisdictional questions, they also invoked elementary principles of the rule of law to portray Guantánamo as an egregious breach of American constitutionalism and were supported by numerous amicus briefs written by former judges, diplomats, generals, prisoners of war, and civil rights icon and survivor of the Japanese internment, Fred Korematsu.
The strategy proved effective. In a stinging rebuke to the Bush administration, the Court—then seated with two persuadable rule-of-law conservatives, Anthony Kennedy and Sandra Day O’Connor—ruled in Rasul v. Bush in 2004 that U.S. courts did in fact have jurisdiction in Guantánamo according to federal statute and that detainees could petition for writs under the habeas corpus statute, even though they were not U.S. citizens.
The CCR thereafter recruited hundreds of lawyers (myself among them) who eventually provided representation to the 779 men detained there, even as the Bush administration continued to fight every step of the way to prevent meaningful access to the courts. Congress shamefully assisted this fight by revoking statutory habeas entitlement for Guantánamo detainees under the Detainee Treatment Act of 2005 and then, in 2006, after this law failed before the Supreme Court, by passing the Military Commissions Act, which again sought to bar access to courts and had its key habeas provisions, too, overturned by the Supreme Court (in Boumediene v. Bush in 2008). In one 2005 hearing, before Guantánamo cases were held up by these congressional revocations, a judge asked hypothetically whether the United States government believed it could indefinitely detain as an “enemy combatant” a “little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities?” Why yes, the government responded—fearless of legal or ethical constraints.
The insidiousness of this bid for unconstrained power can only be fully measured in the stories of the lives it has damaged. In 2002 one of my clients, German resident Murat Kurnaz, was detained at Guantánamo. Two and a half years later, he was denominated an “enemy combatant” by an ad hoc military tribunal on the grounds that his hometown friend and fellow Turkish national had engaged in a suicide bombing in Istanbul in 2003. Leaving aside the absurd legal proposition that one could be imprisoned indefinitely for the unknowable acts of a former acquaintance (Murat was held in incommunicado detention in Guantanamo at the time of the bombing), the case was factually preposterous: after one phone call, we could have proven that the childhood acquaintance was alive and well. In these administrative military show trials, facts were simply made up because there was no recourse to refute them. Indeed, in Murat’s classified file, which I later was able to make public, multiple national security entities had concluded that Murat had no connections to terrorism, yet continued to defend his detention for years after.
In light of such cases, how can we think the administrators of Guantánamo speak a fundamentally different language than the administrators of the Gulag? Orwell’s lessons are universal. In the narcissistically fragile worldview of Guantánamo ideologues, legal assertions for human rights were deemed a form of “asymmetric warfare” against the United States—reinforcing the presumed evil of the Muslim enemy it chose to conjure. Suicide attempts by detainees were called “manipulative self-injurious behavior.” Hunger strikes were cast as “long-term non-religious fasts.” Shackles became “humane restraints.” The Department of Defense denied my client a German-English dictionary for undisclosed reasons relating to the national security interests of the United States. This system has relied on bureaucrats who have unquestioningly carried out this perverse logic of total control while at the same time permitting the coexistence of a dark banality alongside the brutality. During one trip to the island, the sheer absurdity of this juxtaposition struck me: one could help oneself to endless Ben & Jerry’s Peace Pops in the military mess halls as Fox News blared out jingoistic reports of U.S. military exploits across the globe. When a Starbucks opened on the base, I bought Murat a dark roast, thinking he might find some joy in the specialty brand; he said he preferred the McDonald’s coffee from before. Even Guantánamo, I learned—this cauldron of human rights violations—could not escape the reach of American consumerism.
Still, as lawyers streamed down to the base over the years, they told hundreds of client stories that laid to waste the lies undergirding the Bush administration’s defense of these mass, lawless detentions. Detainees recounted horrific stories of systemized torture, and the government’s claim that the men they captured were dangerous fell apart after minimal scrutiny—study after study showed only a handful of detainees had connections to terrorism.
This regime endured, however, and outlasted the Bush administration. Barack Obama abandoned his pledge to close the prison within the first year of his presidency, and in 2010 the ultra-conservative D.C. Circuit Court of Appeals systematically dismantled the application of Boumediene protections that had attempted to put detainee rights on a secure constitutional footing in order to ensure “meaningful” federal court review of their detentions. In the wake of these events, detainees were left with no avenue for relief in politics or law. The situation led some prisoners to despair—among them Adnan Latif, who took his life ten years into a detention without foreseeable end.
Others were driven to principled acts of resistance, including a majority of detainees in 2013 who engaged in a mass hunger strike to protest Obama’s failure to make releases for two years. These acts—and the ugliness of the administration’s subsequent force-feeding regime—forced the Obama administration to restart detainee transfers, including of CCR client Tariq Ba Odah, who had refused to abandon his eight-year-long hunger strike even as the ravages of starvation shrank his body to a mere seventy-four pounds. Other detainees girded themselves against the darkness of endless detention through poetry, painting, and memoir. These acts of resistance to Guantánamo’s authoritarian program are reminiscent of those of innumerable political prisoners across time, and like others before them, they bespeak the pursuit of humanity in the face of a project bent on dehumanization.
Today the idea of Guantánamo, like many American political contradictions, occupies a dual space—both island and mainland. On the one hand, the prison stands as an iconic symbol of lawlessness, akin to Cape Town’s Robben Island, which held Nelson Mandela on charges related to terrorism for eighteen years before the fall of apartheid. On the other hand, it continues to be run by a country that boasts of a historic devotion to constitutional democracy. The early Guantánamo lawyers, in their powerful work of moral exhortation, were right to argue in 2004 that Guantánamo is exceptional, even if history shows them to be wrong. In reality, twenty years hence, Guantánamo is everywhere. Indefinite detention without prospect of charge or trial persists. A paradigm of maximum security, emergency extra-constitutionalism, and demonization of the other has seeped and metastasized throughout U.S. legal and political culture, echoing the brutal legacies of the American past—from Indigenous dispossession and extermination to chattel slavery and the internment of Japanese Americans—while also reinforcing the injustices of the present. The logic of Guantánamo pervades a starkly racist U.S. prison system that subjects the largest national population of prisoners in the world to the routine brutality of solitary confinement and capital punishment; it endures in highly militarized municipal police forces and in the arming of the Southern border; and it suffuses a system of immigration courts and prisons that defies principles of human rights and international law.
From this vantage, it is no coincidence that the crimes committed at Guantánamo remain unpunished. Though Dick Cheney, never-Trump Republicans, and many progressives have portrayed Trump as an anomaly of American democracy, there is in fact a clear continuity between the authoritarianism of the immediate post-9/11 era and the authoritarianism of the Trump administration—one that also implicates the failures of Obama and now Joe Biden to close Guantánamo, investigate the crimes committed there, and hold the perpetrators accountable. The American exceptionalism Bush deployed—to invade Muslim countries, create lawless prison sites, target an entire class of domestic residents on the basis of ethnicity and religious affiliation, and authorize torture—seamlessly morphed into the vulgar and explicit ethnonationalism of the Trump administration, which expanded executive claims to justify innumerable norm transgressions of its own. Bush’s construction of an existential Muslim threat to what was newly codified as “the Homeland” permitted Trump to claim that more drastic measures were needed to protect the United States: filling up Guantánamo, bringing back torture, categorically banning the entry of citizens from seven Muslim-majority countries. This politics of fear proved both durable and fungible, enabling the all too easy conversion of one existential threat into another—evidenced, not least of all, in Trump’s fluid toggling between the “Muslim terrorist” and the “Mexican rapist.”
As we reflect on our current democratic crisis, we should see that the indefinite and lawless detention of men at Guantánamo is of a piece with kidnapping children at the Southern border: they are both grotesque, inhumane forms of security theater, designed to project yet another message about America’s muscular capacity for vengeance. All the while, shoddy and ends-driven lawyering deployed in order to justify torture and indefinite detention under the pretense of emergency has greased the path for similar lawyering to justify overturning an election in another fabricated emergency. Many now may see January 6 as I once saw Guantánamo: exceptional. They are, as I was then, mistaken. Reckoning with the threat to U.S. democracy at this moment requires confronting the full range of authoritarian and punitive impulses in American forms of injustice and fighting collectively to end it. Indeed, the task is not so much to protect democracy as to build it.
