As Barack Obama approaches the end of his presidency, the question of what to do with the prison camp at Guantánamo Bay and its remaining 107 prisoners has re-emerged in public debate. If it endures past his last day in office, it will tarnish his legacy with an unfulfilled promise, one he made on his first day in office nearly eight years ago, to shutter the camp. But even if his administration were able to find a way to end the camp at last, the history of the Guantánamo shows that this site nevertheless remains ready to host carceral camps, sites of spatial and legal removal from the political communities that could guarantee what Hannah Arendt called their essential “right to have rights.” While this corner of Cuba is now notorious for its use under the War on Terror, it had been used to indefinitely detain captives before, notably in the early 1990s when it held HIV positive Haitian refugees. And its prolonged and recurring deployment as a site for camps is rooted in a legal ambiguity that to this day remains unresolved.
The U.S. has established camps at this site because it lies outside its territory and occupies an ostensibly legally ambiguous zone between the governments of the United States and Cuba, rooted in U.S. imperial history. The U.S. acquired Guantánamo through its conquest in the 1898 Spanish-American War, which began in that country as the Cuban War of Independence. Indeed, the U.S. seized an armed struggle for independence from Spanish colonial rule, transformed it into a war against a competing imperial power, and ultimately replaced Spain as Cuba’s new imperial guardian. Following the war, the U.S. maintained its control over the country through the 1903 Platt Amendment, which authorized wide-ranging U.S. involvement in Cuban affairs (simultaneously abridging Cuban sovereignty), including the ability to establish naval bases on its territory, “to enable the United States to maintain the independence of Cuba, and to protect the people thereof.” In the same year, the U.S. and Cuba also entered an indefinite lease agreement of Guantánamo Bay, a twelve-mile long dimple on the southeastern edge of Cuba, which can end only when both parties agree to cancel it. Although Cuba has refused to recognize the lease since the Revolution, the Guantánamo base remains, as long as the U.S. chooses to stay there. The lease agreement further stipulated that Cuba maintains “ultimate sovereignty” over Guantánamo, while the United States exercises “complete jurisdiction and control” over the site.
The U.S. has drawn on this imperial history to argue that Guantánamo is situated between the juridical limits of each state. In this narrative, neither U.S. nor Cuban courts have jurisdiction over Guantánamo and the laws of neither state (including international agreements to which they have signed, like the Geneva Conventions or the UN Refugee Convention) apply there. In the words of U.S. Supreme Court Chief Justice John Roberts, Guantánamo is a “jurisdictionally quirky outpost” (Boumediene v. Bush, 2008), where the rule of law is ambiguous. This haze surrounding Guantánamo had been mostly unremarkable (at least for much of the United States), even as the military found use for the base as a coaling station and convoy hub, and as launching pad for military interventions in Latin America.
But when thousands of Haitians fled their country following the 1991 coup d’état against Jean Bertrand Aristide, a populist priest who had won the recent presidential election with a vast majority, the U.S. government found value in Guantánamo’s ostensibly unclear legal status. Fearing a wave of so-called “boat people” flooding its shores, the George H.W. Bush administration sent the U.S. Coast Guard to interdict these refugees in international waters and bring them to Guantánamo, a U.S.-controlled property located just across the Windward Passage from Haiti’s western shore and, more important, at a distance from formal U.S. territory. It argued that because of Guantánamo’s ambiguity, the U.S. government was free to use the space however it wanted — this time as a camp unconstrained by U.S., Cuban, or international law. Put differently, the U.S. leveraged the ostensible legal ambiguity hanging over Guantánamo to enable the extensive reach of its power at this site.
This refugee camp marked the first time the U.S. government deployed its imperial possession for the purposes of mass, indefinite imprisonment, and it set both a historical and legal precedent for the camps that exist at the site today. Over ten thousand refugees passed through the camp, a huge operation divided into six sub-camps dispersed over a repurposed airfield as well as a former housing and training site for Marines that had gone unused since the 1970s. Barbed wire partitioned sub-camps holding many tents, which held many cots. But these tents and cots could not accommodate the numbers of men, women, and children fleeing their home. Soon, people were sleeping on the group or on cardboard boxes. They moved from sub-camp to sub-camp as they went through the asylum screening process, each movement registering a (life-altering) shift in status. They waited for initial interviews in one camp; people granted asylum went to one camp to wait for medical exams, while their unlucky compatriots waited in another to wait for repatriation. But they were not informed on what these movements from camp to camp meant. “I don’t know why I was moved from this camp to that camp, to that camp and to that other camp,” refugee Fritznel Camy stated of his transfers between Camp One, Four, Six, Five, Two-B, and Three. “It is like when you have an animal tied up in a place, why, you feed it there and then you move it — you tie it in another place.”
Few were granted asylum; the vast majority were returned to Haiti in a truncated process that subverted both domestic and international refugee law. When the camp became overcrowded, President Bush ordered the Coast Guard to repatriate refugees it found on the open waters directly from its ships, bypassing even the abbreviated asylum procedure instated at Guantánamo. Out of the small fraction of refugees who passed their asylum screenings, nearly three hundred found themselves in an irresolvable predicament, as they had tested positive for HIV during routine health screenings. These refugees were caught between their asylum claims and their health status, which denied them entry to the U.S. due to a legal ban on HIV positive migrants. They were ultimately trapped in the legal and spatial limbo of Guantánamo: the U.S. would not accept them into its territory, no third country would take them, and they could not return home. So they languished for the indefinite future in the camp, inhabiting uninhabitable barracks without windows, ventilation, or interior walls; eating inedible food prone to spoiling and sometimes infested with maggots; enduring dangerously unsanitary conditions throughout the camp; receiving medical care that was “functionally inaccessible,” as an observer from Doctors of the World put it, due to the breakdown of trust between the camp administrators and refugees. Some refugees were told that they would be held in Guantánamo for twenty years or until a cure for HIV was found; many were encouraged to “voluntarily” repatriate to the life-threatening conditions in Haiti as an alternative to seemingly endless detention under such miserable conditions.
The refugees challenged their indefinite detention in multiple ways: organizing themselves into a political committee (called the Association des Refugiés Politiques Haitiens), demonstrating in peaceful protests that were met with military police raids, engaging in a hunger strike, and filing federal lawsuits with the help of lawyers who litigated their case through the slow-moving judicial process. Remarkably, the district court ruled in their favor, ordering their release from the camp to anywhere but Haiti. Calling it “nothing more than an HIV prison camp,” Judge Sterling Johnson rejected the government’s argument that Guantánamo was a site beyond the U.S. law and jurisdiction, stating: “If the Due Process Clause does not apply to the detainees at Guantánamo, Defendants would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.”
The implications of his decision are clear. It was, however, vacated of all precedent; his ruling that prisoners held at Guantánamo did have constitutional rights would hold no legal standing for future cases due to a deal brokered between the state’s and the refugees’ attorneys. The government agreed to voluntarily release the refugees and drop its appeal, while maintaining Guantánamo’s legal ambiguity. Although attaining release literally saved the lives of these refugees who survived the camp and its immediate aftermath, the conditions that enabled their indefinite detention remain. The U.S. government originally sought to keep Guantánamo’s status indeterminate for future refugee crises. In fact, it reopened Guantánamo to detain Cuban and Haitian refugees shortly after it closed this HIV prison camp. But this vacated legal precedent has also allowed for the renewed use of this site to imprison a new set of detainees.
Following the September 11, 2001 terrorist attacks, the George W. Bush administration decided to deploy Guantánamo as the “least worst place” to hold suspected terrorists captured under the newly launched War on Terror. The administration sought to find a way to deprive detainees of all legal rights and to remove them entirely from the reach of any court. As President Bush’s legal advisors knew, Guantánamo’s legally liminal status had been tested, but left unchanged by the Haitian refugees’ court case. Deputy Assistant Attorney General John Yoo argued in one notorious torture memo that no legal jurisdiction held sway at Guantánamo, thereby depriving any detainee held there of constitutional protections or the ability to find redress through the courts. One month following this memo, the initial Camp X-Ray, with its open-air wire cages built on the same site that once held refugees, received its first prisoners. The practices of detention that have made Guantánamo infamous — including sensory manipulation, sleep deprivation, stress positions, death threats, waterboarding, “rectal rehydration,” force-feeding, and the fact of indefinite detention itself —rest on a legal foundation built by this and other memos, laws, executive orders, and judicial rulings that have affirmed the site’s ambiguous legal status.
Although the Haitian refugees and the majority of the so-called “enemy combatant” detainees have found release, Guantánamo continues to hold 107 men in seemingly permanent detention. Even if the camp were to close (unlikely given the obstacles Congress and the Defense Department have placed before that goal), the conditions that enabled Guantánamo’s use as a camp endure, meaning that it could ensnare some new category of detainee. Furthermore, the closure of Guantánamo would not end the predicament of several dozen current prisoners, who the U.S. considers too dangerous to release, but who it cannot bring to trial due to evidence that is either insufficient to convict or tainted by torture. President Barack Obama has proposed permanently imprisoning them elsewhere, like supermaximum security prisons, where solitary confinement is the norm. Part of the Obama Administration’s proposed solution would bring the seemingly exceptional conditions of Guantánamo (like indefinite detention without trial) into U.S. domestic space. This connection between Guantánamo and “regular” prisons shows that many of the techniques used at Guantánamo are, in fact, not exceptional at all, but are only more extreme versions of the mundane legal and disciplinary practices used within the United States, particularly in the realms of immigration and the prison system. For example, the U.S. Immigration and Customs Enforcement (ICE) is required to keep at least 34,000 im/migrants detained every day, which it achieves by targeting not only undocumented immigrants, but also documented permanent residents who have been convicted of crimes, even ones as minor as shoplifting. These administrative (not punitive) detentions can last for years without a hearing. Such extended detentions also occur through the criminal justice system, as alleged offenders can spend years in prison while awaiting trial due to administrative delays. Those convicted of crimes can be further punished within the prison without due process. The classification of a prisoner as a gang member or “security threat group” can send a prisoner to solitary confinement for years, even decades. And the strategies involved with Guantánamo’s use as a camp—from interdiction and detention of refugees to mass imprisonment without trial—are metastasizing further beyond this site, not only by the United States, but also across the globe. Since 2013, for example, Australia has deployed its navy to interdict and turn back boats of refugees or send them to prison camps in Nauru and Papua New Guinea. It seems the world looks to the U.S. and finds not its commitment to rights recognition, but its tactics of exercising its power. What Guantánamo elucidates, beyond the terrible conditions the prisoners there endure, is the power of the state to exercise domination far beyond the boundaries of any single carceral space.