2004

Slavoj Žižek

We al know what the Hitchcockian “MacGuffin” is: the empty pretext which just serves to set the story in motion, but has no value in itself; in order to illustrate it, Hitchcock often quoted the following story. 

Two gentlemen meet on a train, and one is truck by the extraordinary package being carried by the other. He asks his companion, ‘What is in that unusual package you are carrying there?’ The other man replies, ‘That is a MacGuffin.’ ‘What is a MacGuffin?’ asks the first man. The second says, ‘A MacGuffin is a device used for killing leopards in the Scottish highlands.’ Naturally the first man says, ‘But there are no leopards in the Scottish highlands.’ ‘Well,’ says the second, ‘then that’s not a MacGuffin, is it?’

Do not the “Iraqi weapons of mass destruction” fit the profile of the MacGuffin perfectly? (Incidentally, one of the most famous Hitchcockian MacGuffins is a potential weapon of mass destruction – the bottles with “radioactive diamonds” in Notorious!) Are they not also an elusive entity, never empirically specified? When, a couple of years ago, the UN inspectors were searching for them in Iraq, they were expected to be hidden in the most disparate and improbable places, from the desert (a rather logical location) to the (slightly irrational) cellars of the presidential palaces (so that, when the palace was bombed, they would poison Saddam and his entire entourage?), allegedly present in large quantities, yet, as if by magic, manually moved around all the time y teams of workers. The more these weapons were destroyed, the more omnipresent and omnipotent their menace seemed, as if the destruction of the greater part of them supernaturally augmented the destructive power of the remainder. As such, by definition, they can never be found, and are therefore all the more dangerous … Now that none have been found, we have reached the last line of the MacGuffin story: ‘ “Well,” said President Bush in Septmber 2003, ‘ “then that’s not a MacGuffin, is it?”‘

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

New York Times

Sheryl Gay Stolberg

WASHINGTON, Sept. 6 — President Bush said Wednesday that 14 high-profile terror suspects held secretly until now by the Central Intelligence Agency — including the man accused of masterminding the Sept. 11 attacks — had been transferred to the detention center at Guantánamo Bay, Cuba, to face military tribunals if Congress approves.

The suspects include Khalid Shaikh Mohammed, thought to be the Sept. 11 mastermind, and other close associates of Osama bin Laden. Mr. Bush said he had decided to “bring them into the open” after years in which the C.I.A. held them without charges in undisclosed sites abroad, in a program the White House had not previously acknowledged.

The announcement, in the East Room of the White House, was the first time the president had discussed the secret C.I.A. program, and he made clear that he had fully authorized it. Mr. Bush defended the treatment the suspects had received but would not say where the so-called “high-value terrorist detainees” had been held or what techniques had been used to extract information from them.

The transfer of the high-level suspects to Guantánamo Bay effectively suspended the extraordinary program, in which the intelligence agency became the jailer and interrogator of suspects counterterrorism officials considered the world’s most wanted Islamic extremists.

The government says the 14 terror suspects include some of the most senior members of Al Qaeda captured by the United States since 2001, including those responsible for the bombing of the destroyer Cole in 2000 in Yemen and the 1998 attacks on American embassies in Kenya and Tanzania. Most of the detainees have been interviewed extensively and are believed to have little remaining intelligence value.

With the transfer of the suspects to Guantánamo, which is run by the Defense Department, the International Committee of the Red Cross will monitor their treatment, Mr. Bush said. He used the East Room appearance to urge Congress to authorize new military commissions to put terror suspects on trial, replacing rules established by the administration but struck down in June by the Supreme Court.

“As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on Sept. 11, 2001, can face justice,” Mr. Bush said, to an audience that included family members of the victims. He added, “To start the process for bringing them to trial, we must bring them out into the open.”

To that end, the president sent Congress legislation proposing new rules for the commissions and detailing specific standards for the humane treatment of detainees. Yet the proposal hews closely to the old commission model, and it retains several provisions the court found troublesome, including language that permits defendants to be excluded from their own trials.

At the same time, the Pentagon released a new Army Field Manual that lays out permissible interrogation techniques and specifically bans eight methods that have come up in abuse cases. Among the techniques banned is water-boarding, in which a wet rag is forced down a bound prisoner’s throat to cause gagging; intelligence officials have said Mr. Mohammed was subjected to that treatment while in C.I.A. custody.

Although the C.I.A. has faced criticism over the use of harsh techniques, one senior intelligence official said detainees had not been mistreated. They were given dental and vision care as well as the Koran, prayer rugs and clocks to schedule prayers, the official said. They were also given reading material, DVD’s and access to exercise equipment.

Administration officials said the timing of Mr. Bush’s decision to bring the terror suspects to trial was driven not by politics but by the need to respond to the Supreme Court’s decision and the fact that the suspects were no longer regarded as sources of valuable intelligence.

On Capitol Hill, some Republicans reacted warily. But even those who criticized the proposal said it was imperative for Congress to pass legislation setting up tribunals soon.

“I do not believe it is necessary to have a trial where the accused cannot see the evidence against them,” said Senator Lindsey Graham, Republican of South Carolina, a former military prosecutor who has played a central role in the debate. But Mr. Graham said he believed his differences with the White House “can be overcome.”

Mr. Bush’s speech was the third in a series he is delivering on the war on terror in the days before the fifth anniversary of the Sept. 11 attacks, and it carried potential political benefits for a White House that is intent on maintaining Republican control of Congress this November.

The address helped put a face on the enemy, reminding Americans that while Osama bin Laden — to whom Mr. Bush referred repeatedly in a speech on Tuesday — is still at large, many terrorists have been captured. Five years after the attacks, Mr. Bush gave the families of Sept. 11 victims something to cheer about, and those in the audience did, as he announced he wanted to put the suspects on trial.

By moving the high-profile suspects to Guantánamo just two months before the midterm elections, the administration is putting intense pressure on lawmakers to act before adjourning to campaign. If Democrats try to thwart legislation to try senior members of Al Qaeda, they will risk being labeled weak on national security, a label they can ill afford in an election that may turn on the question of which party is better suited to keep Americans safe.

“This is certainly a logical and very sound step both substantively and politically,” said David Rivkin, who served in the White House counsel’s office under the first President Bush and is sympathetic to this administration’s approach. “It’s reminding the country and the world of the folks we are fighting against. Nobody can say these are just pitiful foot soldiers; these are pretty senior guys.”

The C.I.A. program, though officially a secret, has been the subject of numerous news reports in recent months. By speaking publicly about it for the first time, Mr. Bush hopes to build support for it on Capitol Hill, and in the public.

The White House released biographies of the 14 suspects and details of the accusations against them. They include such well-known Qaeda operatives as Abu Zubaydah, who the administration said was trying to organize a terrorist attack in Israel at the time of his capture, and Ramzi bin al-Shibh, who the authorities say helped facilitate the Sept. 11 attacks.

Despite the new information, human rights organizations were critical of Mr. Bush’s announcement.

“It’s wonderful that at last the United States has acknowledged that these detention sites exist,” said Larry Cox, executive director of Amnesty International U.S.A. But Mr. Cox described the program as “a form of torture,” and said the United States should suspend it.

In his speech, Mr. Bush fiercely resisted that characterization. “I want to be absolutely clear with our people, and the world,” he said. “The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it — and I will not authorize it.”

A senior intelligence official said there had been fewer than 100 detainees in the C.I.A. program since its inception shortly after the Sept. 11 attacks. Beyond the 14, the remainder have either been turned over to the Defense Department as so-called unlawful enemy combatants, returned to their countries of origin or sent to nations that have legal proceedings against them.

The official described the C.I.A. detainees as the government’s “single largest source of insight into Al Qaeda,” saying they accounted for 50 percent of everything the authorities had learned about the terrorist network. But, he said, “Some of these people have been held for a considerable period of time, and their intelligence value has aged off.”

Mr. Bush said the C.I.A. would not relinquish its capability to detain and question terrorism suspects, and the senior intelligence official said the administration intended that the program would continue. But agency officials — who feared employees might be subject to lawsuits or criminal prosecution — welcomed the hand-off of the detainees and the prospect that the C.I.A.’s role would be limited in future cases.

“I am confident that this will be greeted with relief by agency employees,” said Jeffrey H. Smith, a former general counsel for the C.I.A. “Many of them were uncomfortable with their role as jailers.”

Military justice experts say that if Congress passes the legislation, trials of some terror suspects at Guantánamo could begin relatively quickly, in three to four months. But the trials of the 14 high-value suspects, who are held in a special high-security facility separate from other detainees, might not begin for at least a year, because the government would have to build its case .

One expert who has been critical of the administration’s plan, Eugene R. Fidell, predicted that the proposal would attract a lawsuit.

“Going the way they have done this is in fact quite unfair to the very families of 9/11 victims who President Bush had at his meeting today,” Mr. Fidell said, “because those people need closure and in fact what he’s done is guarantee further protracted delay because of the inevitable litigation.”

On Capitol Hill, Democrats were also critical. Representative Jane Harman of California, the senior Democrat on the House Intelligence Committee, said Mr. Bush should have disclosed the program years ago and called his speech “the opening salvo in the fall campaign.”

David Johnston and Mark Mazzetti contributed reporting for this article.

New York Times

Mark Mazzetti and William Glaberson

WASHINGTON — President Obama signed executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

The orders, which are the first steps in undoing detention policies of former President George W. Bush, rewrite American rules for the detention of terrorism suspects. They require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.

Details of the directive involving the C.I.A. were described by government officials who insisted on anonymity so they could not be blamed for pre-empting a White House announcement. Copies of the draft order on Guantánamo were provided by people who have consulted with Mr. Obama’s transition team and requested anonymity for the same reason.

In remarks prepared for delivery at his confirmation hearings to become director of national intelligence in the Obama administration, Dennis C. Blair, a retired admiral with a long background in intelligence, endorsed the new approach and promised to enforce it rigorously. “It is not enough to set a standard and announce it,” he said.

“I believe strongly that torture is not moral, legal or effective,” he told the Senate Select Committee on Intelligence. “Any program of detention and interrogation must comply with the Geneva Conventions, the Conventions on Torture, and the Constitution. There must be clear standards for humane treatment that apply to all agencies of U.S. Government, including the Intelligence Community,” his written statement said.

As for closing Guantanamo, he said that would take time but must be done because it has become “a damaging symbol to the world.”

“It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security,” Admiral Blair’s statement said.

“The guiding principles for closing the center should beprotecting our national security, respecting the Geneva Conventions and the rule of law, and respecting the existing institutions of justice in this country. I also believe we should revitalize efforts to transfer detainees to their countries of origin or other countries whenever that would be consistent with these principles. Closing this center and satisfying these principles will take time, and is the work of many departments and agencies.”

The executive order on interrogations is certain to be received with some skepticism at the C.I.A., which for years has maintained that the military’s interrogation rules are insufficient to get information from senior Qaeda figures like Khalid Sheikh Mohammed. The Bush administration asserted that the harsh interrogation methods were instrumental in gaining valuable intelligence on Qaeda operations.

The intelligence agency built a network of secret prisons in 2002 to house and interrogate senior Qaeda figures captured overseas. The exact number of suspects to have moved through the prisons is unknown, although Michael V. Hayden, the departing director of the agency, has in the past put the number at “fewer than 100.”

The secret detentions brought international condemnation, and in September 2006, President Bush ordered that the remaining 14 detainees in C.I.A. custody be transferred to Guantánamo Bay and tried by military tribunals.

But Mr. Bush made clear then that he was not shutting down the C.I.A. detention system, and in the last two years, two Qaeda operatives are believed to have been detained in agency prisons for several months each before being sent to Guantánamo.

A government official said Mr. Obama’s order on the C.I.A. would still allow its officers abroad to temporarily detain terrorism suspects and transfer them to other agencies, but would no longer allow the agency to carry out long-term detentions.

Since the early days after the 2001 attacks, the intelligence agency’s role in detaining terrorism suspects has been significantly scaled back, as has the severity of interrogation methods the agency is permitted to use. The most controversial practice, the simulated drowning technique known as water-boarding, was used on three suspects but has not been used since 2003, C.I.A. officials said.

But at the urging of the Bush administration, Congress in 2006 authorized the agency to continue using harsher interrogation methods than those permitted for use by other agencies, including the military. Those exact methods remain classified. The order on Guantánamo says that the camp, which received its first hooded and chained detainees seven years ago this month, “shall be closed as soon as practicable, and no later than one year from the date of this order.”

The order calls for a cabinet-level panel to grapple with issues including where in the United States prisoners might be moved and what courts they could be tried in. It also provides for a new diplomatic effort to transfer some of the remaining men, including more than 60 that the Bush administration had cleared for release.

The order also directs an immediate assessment of the prison itself to ensure that the men are held in conditions that meet the humanitarian requirements of the Geneva Convention. That provision appeared to be a pointed embrace of the international treaties that the Bush administration often argued did not apply to detainees captured in the war against terrorism.

The seven years of the detention camp have included four suicides, hunger strikes by scores of detainees, and accusations of extensive use of solitary confinement and abusive interrogations, which the Department of Defense has long denied. Last week a senior Pentagon official said she had concluded that interrogators at Guantánamo had tortured one detainee, who officials have said was a would-be “20th hijacker” in the attacks of Sept. 11, 2001.

The report of Thursday’s announcement came after the new administration late Tuesday night ordered an immediate halt to the military commission proceedings for prosecuting detainees at Guantánamo and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there. Government lawyers described both delays as necessary for the administration to make a broad assessment of detention policy.

The cases immediately affected include those of five detainees charged as the coordinators of the 2001 attacks, including the case against Mr. Mohammed, the self-described mastermind.

The decision to stop the commissions was described by the military prosecutors as a pause in the war-crimes system “to permit the newly inaugurated president and his administration time to review the military commission process generally and the cases currently pending before the military commissions, specifically.”

More than 200 detainees’ habeas corpus cases have been filed in federal court, and lawyers said they expected that all of the cases would be stayed.

Mr. Obama had suggested in the campaign that, in place of military commissions, he would prefer prosecutions in federal courts or, perhaps, in the existing military justice system, which provides legal guarantees similar to those of American civilian courts.

Some human rights groups and lawyers for detainees said they were concerned about the one-year timetable. “It only took days to put these men in Guantánamo; it shouldn’t take a year to get them out,” said Vincent Warren, the executive director of the Center for Constitutional Rights in New York, which has coordinated detainees’ lawyers.

But several groups that had criticized the Bush administration’s policies applauded the rapid moves by the new administration. Mr. Obama’s actions “reaffirmed American values and are a ray of light after eight long, dark years,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Mark Mazzetti reported from Washington, and William Glaberson from New York. Carl Hulse contributed reporting from Washington.

George W. Bush 

transcribed speech

Fort Bragg 

Thank you. Please be seated. Good evening. I’m pleased to visit Fort Bragg, “Home of the Airborne and Special Operations Forces.” It’s an honor to speak before you tonight.

My greatest responsibility as President is to protect the American people. And that’s your calling, as well. I thank you for your service, your courage, and your sacrifice. I thank your families, who support you in your vital work. The soldiers and families of Fort Bragg have contributed mightily to our efforts to secure our country and promote peace. America is grateful, and so is your Commander-in-Chief.

The troops here and across the world are fighting a global war on terror. The war reached our shores on September the 11th, 2001. The terrorists who attacked us — and the terrorists we face — murder in the name of a totalitarian ideology that hates freedom, rejects tolerance, and despises all dissent. Their aim is to remake the Middle East in their own grim image of tyranny and oppression — by toppling governments, by driving us out of the region, and by exporting terror.

To achieve these aims, they have continued to kill — in Madrid, Istanbul, Jakarta, Casablanca, Riyadh, Bali, and elsewhere. The terrorists believe that free societies are essentially corrupt and decadent, and with a few hard blows they can force us to retreat. They are mistaken. After September the 11th, I made a commitment to the American people: This nation will not wait to be attacked again. We will defend our freedom. We will take the fight to the enemy.

Iraq is the latest battlefield in this war. Many terrorists who kill innocent men, women, and children on the streets of Baghdad are followers of the same murderous ideology that took the lives of our citizens in New York, in Washington, and Pennsylvania. There is only one course of action against them: to defeat them abroad before they attack us at home. The commander in charge of coalition operations in Iraq — who is also senior commander at this base — General John Vines, put it well the other day. He said: “We either deal with terrorism and this extremism abroad, or we deal with it when it comes to us.”

Our mission in Iraq is clear. We’re hunting down the terrorists. We’re helping Iraqis build a free nation that is an ally in the war on terror. We’re advancing freedom in the broader Middle East. We are removing a source of violence and instability, and laying the foundation of peace for our children and our grandchildren.

The work in Iraq is difficult and it is dangerous. Like most Americans, I see the images of violence and bloodshed. Every picture is horrifying, and the suffering is real. Amid all this violence, I know Americans ask the question: Is the sacrifice worth it? It is worth it, and it is vital to the future security of our country. And tonight, I will explain the reasons why.

Some of the violence you see in Iraq is being carried out by ruthless killers who are converging on Iraq to fight the advance of peace and freedom. Our military reports that we have killed or captured hundreds of foreign fighters in Iraq who’ve come from Saudi Arabia and Syria, Iran, Egypt, Sudan, Yemen, Libya and others. They are making common cause with criminal elements, Iraqi insurgents, and remnants of Saddam Hussein’s regime who want to restore the old order. They fight because they know that the survival of their hateful ideology is at stake. They know that as freedom takes root in Iraq, it will inspire millions across the Middle East to claim their liberty, as well. And when the Middle East grows in democracy and prosperity and hope, the terrorists will lose their sponsors, lose their recruits, and lose their hopes for turning that region into a base for attacks on America and our allies around the world.

Some wonder whether Iraq is a central front in the war on terror. Among the terrorists, there is no debate. Hear the words of Osama Bin Laden: “This Third World War is raging” in Iraq.¹ “The whole world is watching this war.” He says it will end in “victory and glory, or misery and humiliation.” The terrorists know that the outcome will leave them emboldened, or defeated. So they are waging a campaign of murder and destruction. And there is no limit to the innocent lives they are willing to take.

We see the nature of the enemy in terrorists who exploded car bombs along a busy shopping street in Baghdad, including one outside a mosque. We see the nature of the enemy in terrorists who sent a suicide bomber to a teaching hospital in Mosul. We see the nature of the enemy in terrorists who behead civilian hostages and broadcast their atrocities for the world to see.

These are savage acts of violence, but they have not brought the terrorists any closer to achieving their strategic objectives. The terrorists — both foreign and Iraqi — failed to stop the transfer of sovereignty. They failed to break our Coalition and force a mass withdrawal by our allies. They failed to incite an Iraqi civil war. They failed to prevent free elections. They failed to stop the formation of a democratic Iraqi government that represents all of Iraq’s diverse population. And they failed to stop Iraqis from signing up in large number with the police forces and the army to defend their new democracy.

The lesson of this experience is clear: The terrorists can kill the innocent, but they cannot stop the advance of freedom. The only way our enemies can succeed is if we forget the lessons of September the 11th, if we abandon the Iraqi people to men like Zarqawi, and if we yield the future of the Middle East to men like Bin Laden. For the sake of our nation’s security, this will not happen on my watch.

A little over a year ago, I spoke to the nation and described our coalition’s goals in Iraq. I said that America’s mission in Iraq is to defeat an enemy and give strength to a friend — a free, representative government that is an ally in the war on terror, and a beacon of hope in a part of the world that is desperate for reform. I outlined the steps we would take to achieve this goal: We would hand authority over to a sovereign Iraqi government. We would help Iraqis hold free elections by January 2005. We would continue helping Iraqis rebuild their nation’s infrastructure and economy. We would encourage more international support for Iraq’s democratic transition, and we would enable Iraqis to take increasing responsibility for their own security and stability.

In the past year, we have made significant progress. One year ago today, we restored sovereignty to the Iraqi people. In January 2005, more than 8 million Iraqi men and women voted in elections that were free and fair, and took time on — and took place on time. We continued our efforts to help them rebuild their country. Rebuilding a country after three decades of tyranny is hard, and rebuilding while at war is even harder. Our progress has been uneven, but progress is being made.

We’re improving roads and schools and health clinics. We’re working to improve basic services like sanitation, electricity, and water. And together with our allies, we’ll help the new Iraqi government deliver a better life for its citizens.

In the past year, the international community has stepped forward with vital assistance. Some 30 nations have troops in Iraq, and many others are contributing non-military assistance. The United Nations is in Iraq to help Iraqis write a constitution and conduct their next elections. Thus far, some 40 countries and three international organizations have pledged about 34 billion dollars in assistance for Iraqi reconstruction. More than 80 countries and international organizations recently came together in Brussels to coordinate their efforts to help Iraqis provide for their security and rebuild their country. And next month, donor countries will meet in Jordan to support Iraqi reconstruction.

Whatever our differences in the past, the world understands that success in Iraq is critical to the security of our nations. As German Chancellor Gerhard Schroeder said at the White House yesterday, “There can be no question a stable and democratic Iraq is in the vested interest of not just Germany, but also Europe.” Finally, we have continued our efforts to equip and train Iraqi security forces. We made gains in both the number and quality of those forces. Today Iraq has more than 160,000 security forces trained and equipped for a variety of missions. Iraqi forces have fought bravely, helping to capture terrorists and insurgents in Najaf and Samarra, Fallujah and Mosul. And in the past month, Iraqi forces have led a major anti-terrorist campaign in Baghdad called Operation Lightning, which has led to the capture of hundreds of suspected insurgents. Like free people everywhere, Iraqis want to be defended by their own countrymen, and we are helping Iraqis assume those duties.

The progress in the past year has been significant, and we have a clear path forward. To complete the mission, we will continue to hunt down the terrorists and insurgents. To complete the mission, we will prevent al Qaeda and other foreign terrorists from turning Iraq into what Afghanistan was under the Taliban, a safe haven from which they could launch attacks on America and our friends. And the best way to complete the mission is to help Iraqis build a free nation that can govern itself, sustain itself, and defend itself.

So our strategy going forward has both a military track and a political track. The principal task of our military is to find and defeat the terrorists, and that is why we are on the offense. And as we pursue the terrorists, our military is helping to train Iraqi security forces so that they can defend their people and fight the enemy on their own. Our strategy can be summed up this way: As the Iraqis stand up, we will stand down.

We’ve made progress, but we have a lot of — a lot more work to do. Today Iraqi security forces are at different levels of readiness. Some are capable of taking on the terrorists and insurgents by themselves. A large number can plan and execute anti-terrorist operations with coalition support. The rest are forming and not yet ready to participate fully in security operations. Our task is to make the Iraqi units fully capable and independent. We’re building up Iraqi security forces as quickly as possible, so they can assume the lead in defeating the terrorists and insurgents.

Our coalition is devoting considerable resources and manpower to this critical task. Thousands of coalition troops are involved in the training and equipping of Iraqi security forces. NATO is establishing a military academy near Baghdad to train the next generation of Iraqi military leaders, and 17 nations are contributing troops to the NATO training mission. Iraqi army and police are being trained by personnel from Italy, Germany, Ukraine, Turkey, Poland, Romania, Australia, and the United Kingdom. Today, dozens of nations are working toward a common objective: an Iraq that can defend itself, defeat its enemies, and secure its freedom.

To further prepare Iraqi forces to fight the enemy on their own, we are taking three new steps: First, we are partnering coalition units with Iraqi units. These coalition-Iraqi teams are conducting operations together in the field. These combined operations are giving Iraqis a chance to experience how the most professional armed forces in the world operate in combat.

Second, we are embedding coalition “transition teams” inside Iraqi units. These teams are made up of coalition officers and non-commissioned officers who live, work, and fight together with their Iraqi comrades. Under U.S. command, they are providing battlefield advice and assistance to Iraqi forces during combat operations. Between battles, they are assisting the Iraqis with important skills, such as urban combat, and intelligence, surveillance and reconnaissance techniques.

Third, we’re working with the Iraqi Ministries of Interior and Defense to improve their capabilities to coordinate anti-terrorist operations. We’re helping them develop command and control structures. We’re also providing them with civilian and military leadership training, so Iraq’s new leaders can effectively manage their forces in the fight against terror.

The new Iraqi security forces are proving their courage every day. More than 2,000 members of Iraqi security forces have given their lives in the line of duty. Thousands more have stepped forward, and are now training to serve their nation. With each engagement, Iraqi soldiers grow more battle-hardened, and their officers grow more experienced. We’ve learned that Iraqis are courageous and that they need additional skills. And that is why a major part of our mission is to train them so they can do the fighting, and then our troops can come home.

I recognize that Americans want our troops to come home as quickly as possible. So do I. Some contend that we should set a deadline for withdrawing U.S. forces. Let me explain why that would be a serious mistake. Setting an artificial timetable would send the wrong message to the Iraqis, who need to know that America will not leave before the job is done. It would send the wrong message to our troops, who need to know that we are serious about completing the mission they are risking their lives to achieve. And it would send the wrong message to the enemy, who would know that all they have to do is to wait us out. We will stay in Iraq as long as we are needed, and not a day longer.

Some Americans ask me, if completing the mission is so important, why don’t you send more troops? If our commanders on the ground say we need more troops, I will send them. But our commanders tell me they have the number of troops they need to do their job. Sending more Americans would undermine our strategy of encouraging Iraqis to take the lead in this fight. And sending more Americans would suggest that we intend to stay forever, when we are, in fact, working for the day when Iraq can defend itself and we can leave. As we determine the right force level, our troops can know that I will continue to be guided by the advice that matters: the sober judgment of our military leaders.

The other critical element of our strategy is to help ensure that the hopes Iraqis expressed at the polls in January are translated into a secure democracy. The Iraqi people are emerging from decades of tyranny and oppression. Under the regime of Saddam Hussein, the Shia and Kurds were brutally oppressed, and the vast majority of Sunni Arabs were also denied their basic rights, while senior regime officials enjoyed the privileges of unchecked power. The challenge facing Iraqis today is to put this past behind them, and come together to build a new Iraq that includes all of its people.

They’re doing that by building the institutions of a free society, a society based on freedom of speech, freedom of assembly, freedom of religion, and equal justice under law. The Iraqis have held free elections and established a Transitional National Assembly. The next step is to write a good constitution that enshrines these freedoms in permanent law. The Assembly plans to expand its constitutional drafting committee to include more Sunni Arabs. Many Sunnis who opposed the January elections are now taking part in the democratic process, and that is essential to Iraq’s future.

After a constitution is written, the Iraqi people will have a chance to vote on it. If approved, Iraqis will go to the polls again, to elect a new government under their new, permanent constitution. By taking these critical steps and meeting their deadlines, Iraqis will bind their multiethnic society together in a democracy that respects the will of the majority and protects minority rights.

As Iraqis grow confident that the democratic progress they are making is real and permanent, more will join the political process. And as Iraqis see that their military can protect them, more will step forward with vital intelligence to help defeat the enemies of a free Iraq. The combination of political and military reform will lay a solid foundation for a free and stable Iraq.

As Iraqis make progress toward a free society, the effects are being felt beyond Iraq’s borders. Before our coalition liberated Iraq, Libya was secretly pursuing nuclear weapons. Today the leader of Libya has given up his chemical and nuclear weapons programs. Across the broader Middle East, people are claiming their freedom. In the last few months, we’ve witnessed elections in the Palestinian Territories and Lebanon. These elections are inspiring democratic reformers in places like Egypt and Saudi Arabia. Our strategy to defend ourselves and spread freedom is working. The rise of freedom in this vital region will eliminate the conditions that feed radicalism and ideologies of murder, and make our nation safer.

We have more work to do, and there will be tough moments that test America’s resolve. We’re fighting against men with blind hatred — and armed with lethal weapons — who are capable of any atrocity. They wear no uniform; they respect no laws of warfare or morality. They take innocent lives to create chaos for the cameras. They are trying to shake our will in Iraq, just as they tried to shake our will on September the 11th, 2001. They will fail. The terrorists do not understand America. The American people do not falter under threat, and we will not allow our future to be determined by car bombers and assassins.

America and our friends are in a conflict that demands much of us. It demands the courage of our fighting men and women; it demands the steadfastness of our allies; and it demands the perseverance of our citizens. We accept these burdens, because we know what is at stake. We fight today because Iraq now carries the hope of freedom in a vital region of the world, and the rise of democracy will be the ultimate triumph over radicalism and terror. And we fight today because terrorists want to attack our country and kill our citizens, and Iraq is where they are making their stand. So we’ll fight them there; we’ll fight them across the world, and we will stay in the fight until the fight is won.

America has done difficult work before. From our desperate fight for independence to the darkest days of a Civil War, to the hard-fought battles against tyranny in the 20th century, there were many chances to lose our heart, our nerve, or our way. But Americans have always held firm, because we have always believed in certain truths. We know that if evil is not confronted, it gains in strength and audacity, and returns to strike us again. We know that when the work is hard, the proper response is not retreat; it is courage. And we know that this great ideal of human freedom entrusted to us in a special way, and that the ideal of liberty is worth defending.

In this time of testing, our troops can know: The American people are behind you. Next week, our nation has an opportunity to make sure that support is felt by every soldier, sailor, airman, Coast Guardsman, and Marine at every outpost across the world. This 4th of July, I ask you to find a way to thank the men and women defending our freedom — by flying the flag, sending a letter to our troops in the field, or helping the military family down the street. The Department of Defense has set up a website — AmericaSupportsYou.mil. You can go there to learn about private efforts in your own community. At this time when we celebrate our freedom, let us stand with the men and women who defend us all.

To the soldiers in this hall, and our servicemen and women across the globe: I thank you for your courage under fire and your service to our nation. I thank our military families — the burden of war falls especially hard on you. In this war, we have lost good men and women who left our shores to defend freedom and did not live to make the journey home. I’ve met with families grieving the loss of loved ones who were taken from us too soon. I’ve been inspired by their strength in the face of such great loss. We pray for the families. And the best way to honor the lives that have been given in this struggle is to complete the mission.

I thank those of you who have re-enlisted in an hour when your country needs you. And to those watching tonight who are considering a military career, there is no higher calling than service in our Armed Forces. We live in freedom because every generation has produced patriots willing to serve a cause greater than themselves. Those who serve today are taking their rightful place among the greatest generations that have worn our nation’s uniform. When the history of this period is written, the liberation of Afghanistan and the liberation of Iraq will be remembered as great turning points in the story of freedom.

After September the 11th, 2001, I told the American people that the road ahead would be difficult, and that we would prevail. Well, it has been difficult — and we are prevailing. Our enemies are brutal, but they are no match for the United States of America, and they are no match for the men and women of the United States military.

May God bless you all.

June 11th, 2009

Revelations of barbarism performed in the name of the War on Terror by those working for the United States government has breached new boundaries of selfhood in our liberal democracy. Of course, tortures have been a staple of humanity, whether performed within the public sphere of the state or the private intimacies of a domestic domain. But the media proliferation of these acts haunts our consciousness in a distinctive 2009 way. Five years since the Abu Ghraib photographs came to light, there is another battle with a different President to release similar images that could be called Abu Ghraib Two. Although the sources for these techniques are varied, the abuses that continue in United States prisons must certainly be one such “inspiration.” Just this past year, New York State has finally passed legislation to reduce–but not to completely eliminate–the common punishment of placing severely mentally ill prisoners in solitary confinement in six by nine foot “boxes,” with the possibility of an enhanced penalty of reducing all nourishment to only a food called “the loaf,” flour mixed with vegetables such as cabbage or potatoes. Such practices may be allowed to continue until this law takes full effect in July 2011 [1].

As the options for abuse of those deemed our possible enemies has become ever more visible in the United States, we learned in mid-May that a majority of citizens no longer support a women’s right to terminate a pregnancy. Or so it seemed during the several day minor media blitz featuring one Gallup Poll. Whether this is a true indicator of public opinion on the sovereignty of the self for women is suspect, given that this was one poll (with a pool of some 1,000 participants) and its prominence was no doubt linked to pro-choice President Obama’s commencement speech at Catholic Notre Dame that same week [2]. A more disturbing assault of women’s bodies was the 2007 Supreme Court decision, Gonzalez v. Carhart, that deemed criminal the use of the late term abortion procedure “Dilation and Extraction,” even if it was diagnosed as necessary for the women’s health or to save her life [3]. Although D&X total only .17% of all abortions in the U.S, this decision marks an alarming precedent in that the Supreme Court places the health and life of the woman as a secondary consideration. As I prepare this essay to go to press, I have just learned that George Tiller—one of the few doctors in the U.S. who provided third term abortions for women whose life or health was at risk—has just been shot dead while serving as an usher at his Lutheran church [4].

These selective and disparate examples of assaults on the limits of our bodies and sense of self may push the boundaries of definitions of “intimacy” and “normalization of body intrusion in public space” that are the themes of this inaugural issue. But they are just several of so many such indicators that comprise what could be described as a generalized consciousness of our selves as physical, physic and emotional beings during what until recently was called the age of the War on Terror.

Given these dramatic, on-going and highly visible incursions into our intimate, personal “space,” a visit to the Museum of Modern Art offers a dramatically different experience of our bodies and our selves, one that is perhaps best described as delusional.

In 2004 the Museum opened its redesigned building, which was directed by architect Yoshio Taniguchi [5]. As a counter to what was seen by some as Frank Gehry’s hyperbolic Bilbao and a trend for “intrusive” museum buildings, Taniguchi reportedly summarized his vision with this line:

“If you raise a lot of money, I will give you great, great architecture. But if you raise really a lot of money, I will make the architecture disappear” [6].

And for most reviewers of the New MoMA, the architecture did seem to disappear, as the title of John Updike’s much read New Yorker article, “Invisible Cathedral,” attests. But despite of the glass façade facing the garden, and the glimpses of the city seen through apertures and windows, the most overpowering vista—seen in enhanced scale—throughout the building were brilliantly white walls. The dominance of this feature secured the sense of separation of the museum interior from anything exterior to it. These massive white walls also provided a seemingly neutral decontextualized terrain for everything installed within them. This was exemplified by the predicament of Monet’s Water Lillies. Previously installed in a domestic scale, semi-circular interior, this installation was one of the treasures of the “Old MoMA.” For the inaugural show, Monet’s masterwork was hung in MoMA’s massive atrium, and was singled out by even those who wrote glowingly about the new museum design as an aesthetic disaster–one of the more oft-quoted descriptions was that the majestic mural looked like a “big, soiled Band-Aid” [7]

What was made to disappear was not the museum building with its aggressive walls of whiteness, but all that would counter such a sanitized realm, which was matched by the museum programming. It is a generalization, but nonetheless true: the works exhibited were dominated by preference for abstraction and neutral tones. This was particularly the case with the painting and sculpture galleries, with those devoted to design offering one of the few oases of color, emotion and diversity within this desert of the monochrome. Despite the fact the United States had been obsessed by what was being called the War on Terror, there was no reference to the existence of such conflicts, except for one José Clemente Orozco’s 1940 mural, Dive Bomber and Tank installed in a hall. The New MoMA’s inaugural installation was representative of major Manhattan museums inability to present almost any programming dealing with war for most of the past six years that we have been fighting in Iraq and Afghanistan [8]. At MoMA, programming has been dominated by exhibitions with innocuous themes, and one-person shows, which until recently were almost all only given to artists who are men. The lack of diversity that marked the New MoMA’s canon was seen in the seven works squeezed into the multimedia galleries, which were to represent all the video, digital, film, and media works of the past half century. But this lack was even more disturbing in terms of gender. Too many of the galleries had no, or few, works by women. The famous sculpture garden included not one entry by a woman artist.

Although there have been a few shows devoted to women artists since the museum’s re-opening, and there have been some interesting departures from MoMA’s monochromatic/monographic standard by the design and architecture department [9], a visit to the museum in mid-May affirmed that little has changed since 2004. The thematic exhibitions included such pressing concerns as: Paper: Pressed, Stained, Slashed, Folded; The Printed Picture; Compass in Hand [10]; and Into the Sunset: Photographs of the American West. Certainly, exhibitions with formalist, vague, lacking-a-great-idea themes, such as Staged Pictures: Drawings for Performance can have a fantastic single image, as did this show, which also included several fascinating videos of original theater performances to illuminate the drawings. But the featured—literally “top tier”—temporary exhibitions in the large scale sixth floor galleries were devoted to a Martin Kippenberger’s show (that had just closed) and one called Tangled Alphabets, an exhibition of the work of Leon Ferrari and Mira Shendel. Given the Museum’s history and the pairing of these two artists’ work, I and another critic, who had just seen the show, could not help but wonder that if Schendel had not been a woman, and if these were not Latin American artists, perhaps they would have been assigned a one person retrospective. Finally, there was a change in the sculpture garden installation. They added another artists work, Franz West. So there continues to be no works by women in the MoMA sculpture garden.

Despite the fact that artists have always addressed key issues of their time, with some exceptions, the Museum continues to fail to present a range of programming that is more than one person shows and innocuous thematic exhibitions. This failure to represent a diversity of art and culture is manifest in the entire gesamptkunstwerk that is MoMA. Mirroring the bland programming and ahistorical themes that constitute the selections and exhibitions, the installations and architecture present an exaggerated version of the standard “white box” interior. The new building and installations perpetuate the modern art museum’s convention of installing artworks isolated on neutral-toned walls. But what is particularly important to this discussion is that such spaces create a de-contextualized environment not only for the works of art, but for the viewers. These displays enhance viewers’ sense of ahistorical autonomy, and metaphorically foster an experience of independence, and even “free will.” As is the case with Taneguchi’s design, since the development of these types of installations earlier in the twentieth century, what were originally beige neutral colors have become bright white, and the scale of the walls have increased in sized. In keeping with these developments, the New MoMA, with its immense, self-referential, ultra white interiors, and matching neutral, apolitical, non-diverse, decontextualized programming offers an isolationist, escapist, and delusionally empowering experience for viewers.

Endnotes

[1] The enactment of this law will not take effect until a special facility is built, with the latest date for enactment is July 1, 2011. For an explanation of these details see: see DOCS Today: New York State Department of Correctional Services, vol. 1, no. 3, Spring 2008, http://www.docs.state.ny.us/PressRel/DOCSToday/ Spring2008edition.pdfA (June 1, 2009). A compilation of fact sheets and articles related to what is called the SHU Bill can be found at the Mental Health Alternatives to Solitary Confinement (MHASC) website, http://www.boottheshu.org/ (June 1, 2009).

[2] The exact figure was 1,015, see Linda Saad, “More Americans Pro-life Than Pro-choice,” for First Time,” GALLUP, http://www.gallup.com/poll/118399/more-americans-pro-life-than-pro-choice-first-time.aspx (May 27, 2009).

What was important here was the prominence of this information within the mainstream media, and the fact that related information, like the fact that one third of women in the United States have had an abortion by the age of 45 is rarely mentioned in such discussions in the mainstream press, see “Overview of Abortion in the U.S.,” Guttmacher Institute, http://www.guttmacher.org/media/presskits/2005/06/28/abortionoverview.html (June 1, 2009).

[3] Judge Ruth Bader Ginzburg wrote the dissenting opinion, which she read from the bench. This is unusual for Supreme Court justices to do so and emphasizes the strength of her dissent. As is well known, Ginzburg is the only woman on the Supreme Court. For a discussion that references the unusualness of Ginzburg’s reading out loud, see “After Gonzales v. Carhart: The Future of Abortion Jurisprudence” (event transcript) The Pew Forum on Religion and Public Life, June 14, 2007, http://supreme.justia.com/us/550/05-380/ (May 31, 2009).

For case see, Gonzalez v. Carhart 550 U.S. 124 (2007), Findlaw,

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-380

[4] To cite just one example, see “Monica Davey and Joe Stumpe, “Doctor Who Performed Abortions Is Shot Dead, The New York Times, May 31, 2009, http://www.nytimes.com/2009/06/01/us/01tiller.html?ref=global-home (May 31, 2009).

[5] I have written more extensive analyses of MoMA’s new design and the history of museum practices. Several texts that related especially to this essay are: “What’s so new about MoMA?” Sunday Opinion Section: Newsday, January 23, 2005, A. 41; “Grand Illusions: The “New” Museum of Modern Art,” Curating Subjects, editor, Paul O’Neil, Amsterdam and London: de Appel and Open Editions, 2007; and “Preface”, The Power of Display: A History of Exhibition Installations at the Museum of Modern Art, designLocus of Seoul, Korea, Spring 2007, originally published by the MIT Press in English in 1998.

[6] This was a often quoted line in the press, MoMA curator Paola Antonelli repeated it in a New York Magazine article, Alexandra Lange, “This New House,” October 11, 2004, http://nymag.com/nymetro/arts/features/10057/index4.html (May 26, 2009).

[7] Peter Schjeldahl, “Easy to Look At,” The New Yorker, December 6, 2004, http://www.newyorker.com/archive/2004/12/06/041206craw_artworld (May 26, 2009).

[8] Exceptions were the Whitney Museum’s 2003 The American Effect (which looked at international attitudes toward the U.S.) and a small 2004 permanent collection show Memorials of War. More recently in 2009, MoMA held an exhibition in the mezzaine reading room, The Museum and the War Effort: Artistic Freedom and Reporting for “The Cause,” presenting archival materials (correspondence, press clippings, and photographs) related to MoMA’s WW II exhibitions.

[9] One such exception was Senior Curator of Architecture and Design, Paola Antonelli, with Curatorial Assistant, Patricia Juncosa Vecchierini 2005 exhibition

Safe: Design Takes On Risk.

[10] The full title is for Compass in Hand: Selections from the Judith Rothschild Foundation Contemporary Drawings Collection.

Mary Anne Staniszewski

Mary Anne Staniszewski, Ph.D. is Acting Head of the Department of the Arts at Rensselaer. Her books include, Believing Is Seeing: Creating the Culture of Art (Penguin USA) and The Power of Display: A History of Exhibition Installations at the Museum of Modern Art (The MIT Press) Staniszewski is currently writing a multi-volume “portrait” of the U.S., featuring the themes of race; sex (gender); and life and death.

Original context

EDITORIAL

New York Times

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.

 The target of the judges’ rulings were Combatant Status Review Tribunals, panels that determine whether a prisoner is an “unlawful enemy combatant” who can be tried by one of the commissions created by the 2006 law. The tribunals are, in fact, kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants.

 On Monday, two military judges dismissed separate war crimes charges against two Guantánamo inmates because of the status review system. They said the Pentagon managed to get them declared “enemy combatants,” but not “unlawful enemy combatants,” and moved to try them anyway under the 2006 law. That law says only unlawful combatants may be tried by military commissions. Lawful combatants (those who wear uniforms and carry weapons openly) fall under the Geneva Conventions.

 If the administration loses an appeal, which it certainly should, it will no doubt try to tinker with the review tribunals so they produce the desired verdict. Congress cannot allow that. When you can’t win a bet with loaded dice, something is wrong with the game.

 There is only one path likely to lead to a result that would allow Americans to once again hold their heads high when it comes to justice and human rights. First, Congress needs to restore the right of the inmates of Guantánamo Bay to challenge their detentions. By the administration’s own count, only a small minority of the inmates actually deserve a trial. The rest should be sent home or set free.

 Second, Congress should repeal the Military Commissions Act and start anew on a just system for determining whether prisoners are unlawful combatants. Among other things, evidence obtained through coercion and torture should be banned.

 And Congress should shut down Guantánamo Bay, as called for in bills sponsored by two California Democrats, Representative Jane Harman in the House and Senator Dianne Feinstein in the Senate. Both lawmakers are intimately familiar with the camp and have concluded it is beyond salvaging.

 Their bill would close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.

 The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.

 It is time to get rid of it.

An excerpt from State of Exception

FRANCE

We have already seen how the state of siege had its origin in France during the Revolution. After being established with the Constituent Assembly’s decree of July 8, 1791, it acquired its proper physiognomy as état de siège fictif or état de siège politique with the Directorial law of August 27, 1797, and, finally, with Napoleon’s decree of December 24, 1811. The idea of a suspension of the constitution (of the “rule of the constitution”) had instead been introduced, as we have also seen, by the Constitution of 22 Frimaire Year 8. Article 14 of the Charte of 1814 granted the sovereign the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the State”; because of the vagueness of the formula, Chateaubriand observed “that it is possible that one fine morning the whole Charte will be forfeited for the benefit of Article 14.” The state of siege was expressly mentioned in the Acte additionel to the Constitution of April 22, 1815, which stated that it could only be declared with a law. Since then, moments of constitutional crisis in France over the course of the nineteenth and twentieth centuries have been marked by legislation on the state of siege. After the fall of the July Monarchy, a decree by the Constituent Assembly on June 24, 1848, put Paris in a state of siege and assigned General Cavaignac the task of restoring order in the city. Consequently, an article was included in the new constitution of November 4, 1848, establishing that the occasions, forms, and effects of the state of siege would be firmly set by a law. From this moment on, the dominant principle in the French tradition (though, as we will see, not without exceptions) has been that the power to suspend the laws can belong only to the same power that produces them, that is, parliament (in contrast to the German tradition, which entrusted this power to the head of state). The law of August 9, 1849 (which was partially restricted later by the law of April 4, 1878), consequently established that a political state of siege could be declared by parliament (or, additionally, by the head of state) in the case of imminent danger to external or internal security. Napoleon III had recourse several times to this law and, once installed in power, he transferred, in the constitution of January 1852, the exclusive power to proclaim a state of siege to the head of state. The Franco-Prussian War and the insurrection of the Commune coincided with an unprecedented generalization of the state of exception, which was proclaimed in forty departments and lasted in some of them until 1876. On the basis of these experiences, and after MacMahon’s failed coup d’état in May 1877, the law of 1849 was modified to establish that a state of siege could be declared only with a law (or, if the Chamber of Deputies was not in session, by the head of state, who was then obligated to convene parliament within two days) in the event of “imminent danger resulting from foreign war or armed insurrection” (law of April 3, 1878, Art. 1).

World War One coincided with a permanent state of exception in the majority of the warring countries. On August 2, 1914, President Poincaré issued a decree that put the entire country in a state of siege, and this decree was converted into law by parliament two days later. The state of siege remained in force until October 12, 1919. Although the activity of parliament, which was suspended during the first six months of the war, recommenced in January 1915, many of the laws passed were, in truth, pure and simple delegations of legislative power to the executive, such as the law of February 10, 1918, which granted the government an all but absolute power to regulate by decree the production and trade of foodstuffs. As Tingsten has observed, in this way the executive power was transformed into a legislative organ in the material sense of the term. In any case, it was during this period that exceptional legislation by executive [governativo] decree (which is now perfectly familiar to us) became a regular practice in the European democracies.

 Predictably, the expansion of the executive’s powers into the legislative sphere continued after the end of hostilities, and it is significant that military emergency now ceded its place to economic emergency (with an implicit assimilation between war and economics). In January 1924, at a time of serious crisis that threatened the stability of the franc, the Poincaré government asked for full powers over financial matters. After a bitter debate, in which the opposition pointed out that this was tantamount to parliament renouncing its own constitutional powers, the law was passed on March 22, with a four-month limit on the government’s special powers. Analogous measures were brought to a vote in 1935 by the Laval government, which issued more than five hundred decrees “having force of law” in order to avoid the devaluation of the franc. The opposition from the left, led by Léon Blum, strongly opposed this “fascist” practice, but it is significant that once the Left took power with the Popular Front, it asked parliament in June 1937 for full powers in order to devalue the franc, establish exchange control, and impose new taxes. As has been observed, this meant that the new practice of legislation by executive [governativo] decree, which had been inaugurated during the war, was by now a practice accepted by all political sides. On June 30, 1937, the powers that had been denied Blum were granted to the Chautemps government, in which several key ministries were entrusted to nonsocialists. And on April 10, 1938, Édouard Daladier requested and obtained from parliament exceptional powers to legislate by decree in order to cope with both the threat of Nazi Germany and the economic crisis. It can therefore be said that until the end of the Third Republic “the normal procedures of parliamentary democracy were in a state of suspension.” When we study the birth of the so-called dictatorial regimes in Italy and Germany, it is important not to forget this concurrent process that transformed the democratic constitutions between the two world wars. Under the pressure of the paradigm of the state of exception, the entire politico-constitutional life of Western societies began gradually to assume a new form, which has perhaps only today reached its full development. In December 1939, after the outbreak of the war, the Daladier government obtained the power to take by decree all measures necessary to ensure the defense of the nation. Parliament remained in session (except when it was suspended for a month in order to deprive the communist parliamentarians of their immunity), but all legislative activity lay firmly in the hands of the executive. By the time Marshal Pétain assumed power, the French parliament was a shadow of itself. Nevertheless, the Constitutional Act of July 11, 1940, granted the head of state the power to proclaim a state of siege throughout the entire national territory (which by then was partially occupied by the German army).

 In the present constitution, the state of exception is regulated by Article 16, which De Gaulle had proposed. The article establishes that the president of the Republic may take all necessary measures “when the institutions of the Republic, the independence of the Nation, the integrity of its territory, or the execution of its international commitments are seriously and immediately threatened and the regular functioning of the constitutional public powers is interrupted.” In April 1961, during the Algerian crisis, De Gaulle had recourse to Article 16 even though the functioning of the public powers had not been interrupted. Since that time, Article 16 has never again been invoked, but, in conformity with a continuing tendency in all of the Western democracies, the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.

 GERMANY

 The history of Article 48 of the Weimar Constitution is so tightly woven into the history of Germany between the wars that it is impossible to understand Hitler’s rise to power without first analyzing the uses and abuses of this article in the years between 1919 and 1933. Its immediate precedent was Article 68 of the Bismarckian Constitution, which, in cases where “public security was threatened in the territory of the Reich,” granted the emperor the power to declare a part of the Reich to be in a state of war (Kriegszustand), whose conditions and limitations followed those set forth in the Prussian law of June 4, 1851, concerning the state of siege. Amid the disorder and rioting that followed the end of the war, the deputies of the National Assembly that was to vote on the new constitution (assisted by jurists among whom the name of Hugo Preuss stands out) included an article that granted the president of the Reich extremely broad emergency [eccezionali] powers. The text of Article 48 reads, “If security and public order are seriously [erheblich] disturbed or threatened in the German Reich, the president of the Reich may take the measures necessary to reestablish security and public order, with the help of the armed forces if required. To this end he may wholly or partially suspend the fundamental rights [Grundrechte] established in Articles 114, 115, 117, 118, 123, 124, and 153.” The article added that a law would specify in detail the conditions and limitations under which this presidential power was to be exercised. Since that law was never passed, the president’s emergency [eccezionali] powers remained so indeterminate that not only did theorists regularly use the phrase “presidential dictatorship” in reference to Article 48, but in 1925 Schmitt could write that “no constitution on earth had so easily legalized a coup d’état as did the Weimar Constitution.”

 Save for a relative pause between 1925 and 1929, the governments of the Republic, beginning with Brüning’s, made continual use of Article 48, proclaiming a state of exception and issuing emergency decrees on more than two hundred and fifty occasions; among other things, they employed it to imprison thousands of communist militants and to set up special tribunals authorized to pronounce capital sentences. On several occasions, particularly in October 1923, the government had recourse to Article 4 to cope with the fall of the mark, thus confirming the modern tendency to conflate politico-military and economic crises.

 It is well known that the last years of the Weimar Republic passed entirely under a regime of the state of exception; it is less obvious to note that Hitler could probably not have taken power had the country not been under a regime of presidential dictatorship for nearly three years and had parliament been functioning. In July 1930, the Brüning government was put in the minority, but Brüning did not resign. Instead, President Hindenburg granted him recourse to Article 48 and dissolved the Reichstag. From that moment on, Germany in fact ceased to be a parliamentary republic. Parliament met only seven times for no longer than twelve months in all, while a fluctuating coalition of Social Democrats and centrists stood by and watched a government that by then answered only to the president of the Reich. In 1932, Hindenburg—reelected president over Hitler and Thälmann—forced Brüning to resign and named the centrist von Papen to his post. On June 4, the Reichstag was dissolved and never reconvened until the advent of Nazism. On July 20, a state of exception was proclaimed in the Prussian territory, and von Papen was named Reich Commissioner for Prussia—ousting Otto Braun’s Social Democratic government.

 The state of exception in which Germany found itself during the Hindenburg presidency was justified by Schmitt on a constitutional level by the idea that the president acted as the “guardian of the constitution;” but the end of the Weimar Republic clearly demonstrates that, on the contrary, a “protected democracy” is not a democracy at all, and that the paradigm of constitutional dictatorship functions instead as a transitional phase that leads inevitably to the establishment of a totalitarian regime.

 Given these precedents, it is understandable that the constitution of the Federal Republic did not mention the state of exception. Nevertheless, on June 24, 1968, the “great coalition” of Christian Democrats and Social Democrats passed a law for the amendment of the constitution (Gesetz zur Ergänzung des Grundgesetzes) that reintroduced the state of exception (defined as the “state of internal necessity,” innere Notstand). However, with an unintended irony, for the first time in the history of the institution, the proclamation of the state of exception was provided for not simply to safeguard public order and security, but to defend the “liberal-democratic constitution.” By this point, protected democracy had become the rule.

 SWITZERLAND

 On August 3, 1914, the Swiss Federal Assembly granted the Federal Council “the unlimited power to take all measures necessary to guarantee the security, integrity, and neutrality of Switzerland.” This unusual act—by virtue of which a non-warring state granted powers to the executive that were even vaster and vaguer than those received by the governments of countries directly involved in the war—is of interest because of the debates it provoked both in the assembly itself and in the Swiss Federal Court when the citizens objected that the act was unconstitutional. The tenacity with which on this occasion the Swiss jurists (nearly thirty years ahead of the theorists of constitutional dictatorship) sought (like Waldkirch and Burckhardt) to derive the legitimacy of the state of exception from the text of the constitution itself (specifically, Article 2, which read, “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order”), or (like Hoerni and Fleiner) to ground the state of exception in a law of necessity “inherent in the very existence of the State,” or (like His) in a juridical lacuna that the exceptional provisions must fill, shows that the theory of the state of exception is by no means the exclusive legacy of the antidemocratic tradition.

 ITALY

 In Italy the history and legal situation of the state of exception are of particular interest with regard to legislation by emergency executive [governativi] decrees (the so-called law-decrees). Indeed, from this viewpoint one could say that Italy functioned as a true and proper juridico-political laboratory for organizing the process (which was also occurring to differing degrees in other European states) by which the law-decree “changed from a derogatory and exceptional instrument for normative production to an ordinary source for the production of law”. But this also means that one of the essential paradigms through which democracy is transformed from parliamentary to executive [governamentale] was elaborated precisely by a state whose governments were often unstable. In any case, it is in this context that the emergency decree’s pertinence to the problematic sphere of the state of exception comes clearly into view. The Albertine Statute (like the current Republican Constitution) made no mention of the state of exception. Nevertheless, the governments of the kingdom resorted to proclaiming a state of siege many times: in Palermo and the Sicilian provinces in 1862 and 1866, in Naples in 1862, in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898, where the repression of the disturbances was particularly bloody and provoked bitter debates in parliament. The declaration of a state of siege on the occasion of the earthquake of Messina and Reggio Calabria on December 28, 1908 is only apparently a different situation. Not only was the state of siege ultimately proclaimed for reasons of public order—that is, to suppress the robberies and looting provoked by the disaster—but from a theoretical standpoint, it is also significant that these acts furnished the occasion that allowed Santi Romano and other Italian jurists to elaborate the thesis (which we examine in some detail later) that necessity is the primary source of law.

 In each of these cases, the state of siege was proclaimed by a royal decree that, while not requiring parliamentary ratification, was nevertheless always approved by parliament, as were other emergency decrees not related to the state of siege (in 1923 and 1924 several thousand outstanding law-decrees issued in the preceding years were thus converted into law). In 1926 the Fascist regime had a law issued that expressly regulated the matter of the law-decrees. Article 3 of this law established that, upon deliberation of the council of ministers, “norms having force of law” could be issued by royal decree “(1) when the government is delegated to do so by a law within the limits of the delegation, and (2) in extraordinary situations, in which it is required for reasons of urgent and absolute necessity. The judgment concerning necessity and urgency is not subject to any oversight other than parliament’s political oversight.” The decrees provided for in the second clause had to be presented to parliament for conversion into law; but parliament’s total loss of autonomy during the Fascist regime rendered this condition superfluous.

 Although the Fascist governments’ abuse of emergency decrees was so great that in 1939 the regime itself felt it necessary to limit their reach, Article 77 of the Republican Constitution established with singular continuity that “in extraordinary situations of necessity and emergency” the government could adopt “provisional measures having force of law,” which had to be presented the same day to parliament and which went out of effect if not converted into law within sixty days of their issuance.

 It is well known that since then the practice of executive [governamentale] legislation by law-decrees has become the rule in Italy. Not only have emergency decrees been issued in moments of political crisis, thus circumventing the constitutional principle that the rights of the citizens can be limited only by law (see, for example, the decrees issued for the repression of terrorism: the law-decree of March 28, 1978, n. 59, converted into the law of May 21 1978, n. 191 [the so-called Moro Law], and the law-decree of December 15, 1979, n. 625, converted into the law of February 6, 1980, n. 15), but law-decrees now constitute the normal form of legislation to such a degree that they have been described as “bills strengthened by guaranteed emergency.” This means that the democratic principle of the separation of powers has today collapsed and that the executive power has in fact, at least partially, absorbed the legislative power. Parliament is no longer the sovereign legislative body that holds the exclusive power to bind the citizens by means of the law: it is limited to ratifying the decrees issued by the executive power. In a technical sense, the Italian Republic is no longer parliamentary, but executive [governamentale]. And it is significant that though this transformation of the constitutional order (which is today underway to varying degrees in all the Western democracies) is perfectly well known to jurists and politicians, it has remained entirely unnoticed by the citizens. At the very moment when it would like to give lessons in democracy to different traditions and cultures, the political culture of the West does not realize that it has entirely lost its canon.

 ENGLAND

 The only legal apparatus in England that is comparable to the French état de siège goes by the term martial law; but this concept is so vague that it has been rightly described as an “unlucky name for the justification by the common law of acts done by necessity for the defence of the Commonwealth when there is war within the realm.” This, however, does not mean that something like a state of exception could not exist. In the Mutiny Acts, the Crown’s power to declare martial law was generally confined to times of war; nevertheless, it necessarily entailed sometimes serious consequences for the civilians who found themselves factually involved in the armed repression. Thus Schmitt sought to distinguish martial law from the military tribunals and summary proceedings that at first applied only to soldiers, in order to conceive of it as a purely factual proceeding and draw it closer to the state of exception: “Despite the name it bears, martial law is neither a right nor a law in this sense, but rather a proceeding guided essentially by the necessity of achieving a certain end.”

World War One played a decisive role in the generalization of exceptional executive [governamentali] apparatuses in England as well. Indeed, immediately after war was declared, the government asked parliament to approve a series of emergency measures that had been prepared by the relevant ministers, and they were passed virtually without discussion. The most important of these acts was the Defence of the Realm Act of August 4, 1914, known as DORA, which not only granted the government quite vast powers to regulate the wartime economy, but also provided for serious limitations on the fundamental rights of the citizens (in particular, granting military tribunals jurisdiction over civilians). The activity of parliament saw a significant eclipse for the entire duration of the war, just as in France. And in England too this process went beyond the emergency of the war, as is shown by the approval—on October 29, 1920, in a time of strikes and social tensions—of the Emergency Powers Act. Indeed, Article 1 of the act stated that

if at any time it appears to His Majesty that any action has been taken or is immediately threatened by any persons or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists.

Article 2 of the law gave His Majesty in Council the power to issue regulations and to grant the executive the “powers and duties…necessary for the preservation of the peace,” and it introduced special courts (“courts of summary jurisdiction”) for offenders. Even though the penalties imposed by these courts could not exceed three months in jail (“with or without hard labor”), the principle of the state of exception had been firmly introduced into English law.

 UNITED STATES

 The place—both logical and pragmatic—of a theory of the state of exception in the American constitution is in the dialectic between the powers of the president and those of Congress. This dialectic has taken shape historically (and in an exemplary way already beginning with the Civil War) as a conflict over supreme authority in an emergency situation; or, in Schmittian terms (and this is surely significant in a country considered to be the cradle of democracy), as a conflict over sovereign decision.

 The textual basis of the conflict lies first of all in Article 1 of the constitution, which establishes that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” but does not specify which authority has the jurisdiction to decide on the suspension (even though prevailing opinion and the context of the passage itself lead one to assume that the clause is directed at Congress and not the president). The second point of conflict lies in the relation between another passage of Article 1 (which declares that the power to declare war and to raise and support the army and navy rests with Congress) and Article 2, which states that “the President shall be Commander in Chief of the Army and Navy of the United States.”

 Both of these problems reach their critical threshold with the Civil War (1861–1865). Acting counter to the text of Article 1, on April 15, 1861, Lincoln decreed that an army of seventy-five thousand men was to be raised and convened a special session of Congress for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example of commissarial dictatorship. On April 27, with a technically even more significant decision, he authorized the General in Chief of the Army to suspend the writ of habeas corpus whenever he deemed it necessary along the military line between Washington and Philadelphia, where there had been disturbances. Furthermore, the president’s autonomy in deciding on extraordinary measures continued even after Congress was convened (thus, on February 14, 1862, Lincoln imposed censorship of the mail and authorized the arrest and detention in military prisons of persons suspected of “disloyal and treasonable practices”).

 In the speech he delivered to Congress when it was finally convened on July 4, the president openly justified his actions as the holder of a supreme power to violate the constitution in a situation of necessity. “Whether strictly legal or not,” he declared, the measures he had adopted had been taken “under what appeared to be a popular demand and a public necessity” in the certainty that Congress would ratify them. They were based on the conviction that even fundamental law could be violated if the very existence of the union and the juridical order were at stake (“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”

 It is obvious that in a wartime situation the conflict between the president and Congress is essentially theoretical. The fact is that although Congress was perfectly aware that the constitutional jurisdictions had been transgressed, it could do nothing but ratify the actions of the president, as it did on August 6, 1861. Strengthened by this approval, on September 22, 1862, the president proclaimed the emancipation of the slaves on his authority alone and, two days later, generalized the state of exception throughout the entire territory of the United States, authorizing the arrest and trial before courts martial of “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.” By this point, the president of the United States was the holder of the sovereign decision on the state of exception.

 According to American historians, during World War One President Woodrow Wilson personally assumed even broader powers than those Abraham Lincoln had claimed. It is, however, necessary to specify that instead of ignoring Congress, as Lincoln had done, Wilson preferred each time to have the powers in question delegated to him by Congress. In this regard, his practice of government is closer to the one that would prevail in Europe in the same years, or to the current one, which instead of declaring the state of exception prefers to have exceptional laws issued. In any case, from 1917 to 1918, Congress approved a series of acts (from the Espionage Act of June 1917 to the Overman Act of May 1918) that granted the president complete control over the administration of the country and not only prohibited disloyal activities (such as collaboration with the enemy and the diffusion of false reports), but even made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”

 Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to assume extraordinary powers to cope with the Great Depression by presenting his actions as those of a commander during a military campaign:

 I assume unhesitatingly the leadership of this great army of our people dedicated to a disciplined attack upon our common problems.…I am prepared under my constitutional duty to recommend the measures that a stricken Nation in the midst of a stricken world may require.…But in the event that the Congress shall fail to take [the necessary measures] and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

 It is well not to forget that, from the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statutes culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country—a fact that is in perfect conformity with the already mentioned parallelism between military and economic emergencies that characterizes the politics of the twentieth century.

 The outbreak of World War Two extended these powers with the proclamation of a “limited” national emergency on September 8, 1939, which became unlimited on May 27, 1941. On September 7, 1942, while requesting that Congress repeal a law concerning economic matters, the president renewed his claim to sovereign powers during the emergency: “In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.…The American people can…be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.” The most spectacular violation of civil rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942, with the internment of seventy thousand American citizens of Japanese descent who resided on the West Coast (along with forty thousand Japanese citizens who lived and worked there).

 President Bush’s decision to refer to himself constantly as the “Commander in Chief of the Army” after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.