Supreme emergency at Guantanamo Bay

Since its inception in February, a hunger strike has gained momentum in the US detention facility at Guantanamo Bay, now involving between 40 and 130 prisoners, out of a population of 166. Only three detainees have ever been convicted of any crime. In fact, more than half of the detainees have been cleared for release, yet they remain in chains. 

As the New York Times pointed out: “The numbers matter less than the nature of the protests, however: this is a collective act of despair.” The condition of these desperate men, most of whom were held for years without trial under the George W Bush administration, was once described by the Italian political philosopher, Giorgio Agamben as “homo sacer“: creatures legally dead while biologically still alive.  Subject only to raw power, they have no legal existence.  

The existential absurdity of Guantanamo, as well as its attendant moral calamity, is well illustrated by the force-feeding of at least 11 protesters. The US authorities have met a pacific political commentary on a crisis of being with the default policy of raw power. Yet the attempt to coerce the human spirit through its bodily vessel cannot be an adequate response to the enormous legal, political and moral challenges thrown up by the fact of Guantanamo.  

It is widely recognised, even in the US media, that the extralegal detention of Muslims has become an important resource for extremist recruiters, as well as a source of America’s diminished moral standing in the world. Osama bin Laden was quick off the mark, arguing in 2002 that “what happens in Guantanamo is a historical embarrassment to America and its values, and it screams in your hypocritical faces: what is the value of your signature on any agreement or treaty?” Just a few days ago, Kuwaiti politician Mohammed Hayef al-Mutairi suggested that Kuwaitis might consider abducting two American soldiers to force the US government to release two Kuwaiti detainees who have languished at Guantanamo for over a decade. 

Beyond the issue of indefinite detention, since its establishment by George W Bush in 2002, Guantanamo Bay has been associated with the abrogation of the Geneva Conventions as well as aggressive interrogation practices. The Bush administration offered a number of defences for Guantanamo Bay, but, not without irony, its over-arching argument rested on the idea that the US was acting to defend civilisation itself.   

Supreme emergency 

In many of their statements justifying Guantanamo, Bush administration officials seemed to invoke the notion of a “supreme emergency”. This is a controversial philosophical thesis that puts pressure on the western just war tradition. 

As the western just war tradition developed through the centuries, two spheres of justice emerged: jus ad bellum applied to the decision to resort to war; jus in bello regulated the conduct of war once hostilities began. 

These two regimes of justice are to be applied separately, to guard against the commission of “wrongs” in the name of “right”. The idea was to prevent the justice of a cause from impinging upon and permissively shaping a war’s conduct. That is, to block the Crusading mentality, in which anything is permissible if done for a good cause. As a result, the laws of war were institutionalised in the 20th century and reinforced by a body of international humanitarian law that is categorically independent of the grand agendas of actors. The idea was to confer protections to combatants and civilians, no matter what side they were fighting for or associated with.  

The Bush administration breached this separation in its defence of Guantanamo Bay, using the logic of “supreme emergency”.  

Supreme emergency was most famously expounded by the political theorist Michael Walzer. In supreme emergencies, a whole civilisation is confronted by an unusual, horrifying and imminent danger. It may therefore be acceptable to override categorical jus in bello principles. The idea is that, in such a moral crisis, you break the rules in order to preserve them for the future. Your just cause compels you to violate an otherwise inviolable principle. Instead of applying separately, the jus ad bellum and jus in bello are connected by an appeal to ultimate values.  

The Bush administration utilised supreme emergency thinking in its arguments for Guantanamo Bay. Officials such as White House counsel Alberto Gonzales, Assistant Attorney General Jay Bybee and President Bush himself argued that the unique nature of the war on terrorism required “new thinking in the law of war”. This was owing to the radicalism of an unprecedented enemy, which was planning covert attacks against innocent civilians without warning. Furthermore, the enemy was uncivilised and did not fight according to the laws of war.  

As well as suggesting a tit-for-tat approach, Bush administration statements implied that their adversaries were not morally deserving of the Geneva Conventions’ protections – not even the minimal protections of Common Article 3. “I do not feel even the slightest concern over their treatment”, admitted Donald Rumsfeld, adding that the detainees’ situation at Guantanamo was vastly better than their circumstances when they were found (January 15, 2002). Bush was equally dismissive: “Remember… the ones at Guantanamo Bay are killers. They don’t share the same values we share” (March 20, 2002). 

‘Unlawful combatants’ 

For the administration, the unparalleled nature of the “new” struggle entailed the need for a “paradigm shift”. This shift led to the designation of Guantanamo detainees as “unlawful combatants”, lifting them beyond the reach of Geneva Convention (III) Relative to the Treatment of Prisoners of War – a treaty which had been signed and ratified by the US.  

Officials downplayed what an abrogation of Geneva entailed: 

“There’s a lot of things that prisoners of war are entitled to which don’t make sense if you have dangerous terrorists… Oh, for example, you’re allowed to cook your own food, which would, I assume, would [sic] mean you get knives and things like that.  You’re allowed to have recreation, intellectual pursuits, including scientific research.” (John C Yoo, July 19, 2005) 

Strikingly, there was little mention of Common Article 3, which rejects the inhuman treatment of all human beings, regardless of legal status.  

For indeed, the Bush administration’s “paradigm shift” also led to practices at Guantanamo which, according to the UN, “must be assessed as amounting to torture“.  The ban on torture is a first-order principle that is non-derogable. The United Nations Convention Against Torture – again, signed and ratified by the US – is explicit that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification for torture”.  

However, the Bush administration argued that since the detainees were not technically Prisoners of War – instead, “unlawful combatants” – the Geneva Conventions’ limitations on interrogation were not binding at Guantanamo Bay (in memorandum by Diane E Beaver entitled “Legal Brief on Proposed Counter-Resistance Strategies”, October 11, 2002). 

Choice of evils 

This determination was coupled with a reappraisal of the definition of torture. Bybee advanced what was, in his own words, “an aggressive interpretation as to what amounts to torture” (in memorandum entitled “Standards of Conduct for Interrogation Under 18 USC 2340-2340A”, August 1, 2002). He argued that in order to constitute torture, the detainee must experience severe pain that reached a level ordinarily associated with organ failure or death. In so doing, according to one former JAG at Guantanamo, Bybee “define[d] away torture as we understood it“. 

Bybee also considered two possible defences for interrogators who stood accused of torture. The first of these was a “choice of evils” defence, in which any harm occurring during an interrogation would pale into insignificance compared to the harm avoided by preventing a large scale terrorist attack. Here, Bybee suggests that the prohibition against torture is not absolute after all, and assesses it against a competing good: the prevention of a possible terrorist attack. 

The second defence for the interrogator proposed by Bybee was that of “self-defence”, by which the interrogator accused of torture could claim that he was acting in defence of another (thousands of US civilians). Here, the justification for torture (jus in bello) was based upon the Bush administration’s just cause for resorting to war (jus ad bellum): defence of America.  

Defending civilisation? 

Certainly, the stakes in Bush’s “war on terror” were said to be existential. America’s triumph was depicted as imperative for civilisation. The aim was to rid the world of evil-doers, in a battle between good and evil. Explicit comparisons were made between al-Qaeda and the Nazis (Wolfowitz, July 10, 2004; Bush, August 30, 2005). The US was justified in its policies, because it was “the greatest force for good on this earth” (Bush, September 2, 2004). 

The doctrine of “supreme emergency” is highly controversial among moral philosophers and just war theorists. According to Alex Bellamy, supreme emergency makes fundamental rights conditional. It turns universal human rights into privileges, conferred by the opposing party so long as such rights are not inconvenient to their victory. 

However, even if appeals to supreme emergency could be valid in exceptional cases, it was never clear that al-Qaeda posed an existential threat to the US. Brian Orend pointed out that the US was a hyper-power whose military defeat was not close or imminent. The threat in a supreme emergency must imply genocide or the destruction of an entire civilisational structure, yet the danger from al-Qaeda never came close to that qualitative severity. 

President Obama has, of course, attempted to break with these illegitimate arguments and this dark past. Shortly after taking office in 2009, he deemed Common Article 3 applicable to all persons in US custody, anywhere in the world, and signed an executive order to close Guantanamo Bay. His efforts to that end have been repeatedly blocked by Congress, making it “nearly impossible to transfer captives anywhere“. Some Senators, too, have sought to expand the government’s authority to detain indefinitely without charge, and to short-circuit other legal procedures.  

Obama has his work cut out for him, on this and other issues, but Guantanamo must become a priority because it speaks to our own crisis of being.     

Guantanamo was established in the name of civilisation. The Bush administration claimed it was the custodian of civilisation against the forces of barbarism; its spurious arguments maintained that we were allowed to break civilised rules because we are the good guys defending civilisation. Just as the closure of Guantanamo will set free 166 souls from the cruelty of this irony, so will it liberate the US from the strains of moral hypocrisy, and enable us to lay claim to being civilised once more.  

Dr Alia Brahimi is a Visiting Research Fellow at the University of Oxford. She received her doctorate from the University of Oxford in 2007.