At the northeastern edge of Guantánamo Bay Naval Station, situated close to the border between the American base and the rest of Cuba lies Camp X-Ray. I got a tour of it on a Saturday morning during my time at Guantánamo. Even at eight o'clock in the morning, it was still hot and humid. At the end of the tour an hour later, sweat was dripping down my brow. Then again, this is the Caribbean during mid-June. If there's anything that serves as an appropriate metaphor for American permanent war, it's Camp X-Ray.
JTF (Joint Task Force-Guantánamo) policy has forbidden reporters who cover military commissions at Guantánamo from touring the active prisons, such as Camp Delta. However, Camp X-Ray, which closed over a decade ago, is open for touring. Built in the 1990s, Camp X-Ray was originally a holding area for "misbehaving migrants," according to a Guantánamo fact sheet about the camp. It opened as a temporary detention center for suspected terrorists captured during the War on Terror in January 2002. In the beginning, Camp X-Ray had 20 detainees. People were kept in 64-square-foot cages. By April 2002, the number of detainees increased to about 300. That same month, they were transferred from Camp X-Ray to the newly opened Camp Delta, which lies at the southern edge of Guantánamo. The designs of the current Guantánamo prisons are similar to those of prisons in the United States.
Now Camp X-Ray remains covered in giant weeds. The wood has softened on many of the buildings. As one walks through, it looks like something out of a horror movie or an apocalyptic scene. On our tour, someone's foot fell through the decrepit stairs leading up to a wooden hospital building.
Currently, 166 people are detained at Guantánamo Bay prison camps. According to chief prosecutor US Army Brigadier Gen. Mark Martins, of those 166, around 20 "can be realistically prosecuted." The rest are being "detained until the end of hostilities" against al-Qaeda, the Taliban and "associated forces." But what hostilities? When did they start and when do they end?
To justify prosecuting Abd Rahim al-Nashiri in a military commission rather than federal court, Martins claimed that al-Nashiri is an enemy belligerent engaged in "armed conflict" with the United States. Al-Nashiri's crimes were war crimes and acts of terrorism; thus, he needs to be tried in a military commissions, according to Martins' logic. However, the USSColebombing occurred on October 12, 2000, almost a year before 9/11. The War on Terror is considered to have started with the 2001 Authorization for the Use of Military Force (AUMF) that was signed days after 9/11. So was the United States engaged in an "armed conflict" during the 2000 USSColebombing? Did the War on Terror actually begin before 9/11?
In a press conference on June 10, Martins elaborated.
"The statements of a country about whether it's at war are not the full story of whether you are definitely at war," he said. "The standard [is] ... protracted armed violence of a character, scope, intensity such that the laws of armed conflict apply, right.
"So, consider, one of the important factual points is the fatwas in 1996 where al-Qaeda thinks itself is at war. Then you have the East Africa embassy bombing. Significant death and destruction," he continued. "And then you have some 80 cruise missiles [Operation Infinite Reach, when the U.S. launched cruise missiles at militant bases in Afghanistan and a pharmaceutical factory in Sudan in retaliation for the 1998 bombings of American embassies in Kenya and Tanzania]. This does not look like a standard law enforcement operation.
"Before 2001, we were in a state of armed conflict," said Martins.
Therefore, al-Qaeda's fatwa against the United States in 1996 is considered among the "factual points" that determine that the United States has been at war with terrorism since before 9/11.
But there are legal critiques to his argument. Loyola Law School Professor David Glazier, who served as a US Navy surface warfare officer and specializes in national security, military justice (including commissions) and the law of war, said in an email interview: "The United States was not at war at the time of the Cole bombing, and witnesses at the trial will either testify to that fact or perjure themselves."
"No terrorist attack before 9/11 was ever considered by the international community to rise to the level of an 'armed attack' justifying self-defense, and Congress never authorized hostilities before the Sept. 2001 AUMF," wrote Glazier. "And to say that a non-state terrorist group can 'declare war' on any nation state, let alone a 'superpower' is logically and legally absurd."
Philip Alston, the former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions argued similarly in a May 2010 report on targeted killings. A number of factors must exist for a state to be considered in armed conflict with a non-state group. They include identifiability and "minimal level of organization" of the "non-state armed group," capability to apply laws of war, "engagement of the group in collective, armed, anti-government action," UN recognition of the conflict, high "intensity and duration," "protracted armed violence" and certain territorial confines. According to the report, "these factors make it problematic for the US to show that - outside the context of the armed conflicts in Afghanistan or Iraq - it is in a transnational non-international armed conflict against 'al Qaeda, the Taliban, and other associated forces.'" This is largely because al-Qaeda and other "associated forces" are too "loosely linked, if at all" to be considered parties in an armed conflict.
Despite the legal murkiness of Martins' argument - that a terrorist organization can declare war on a powerful nation-state - he's not the only one making it. The Heritage Foundation stated that "Al-Qaeda declared war on the United States and its allies two times before the attacks on September 11, 2001", using the 1996 and 1998 fatwas as examples. This is despite Osama bin Laden having very little religious authority within Islam, thereby making him and his words relevant to a handful of like-minded extremists only rather than to the wider population of 1.6 billion Muslims around the world. Yet elites within the national security state, since the Bush administration, exaggerated Osama bin Laden and al-Qaeda into a monolithic, global existential threat. Moreover, the notion of a perpetual war against terrorist threats has been embraced by the Obama administration.
Much fanfare, particularly in liberal circles, was made about President Obama's speech on US counterterrorism strategy at National Defense University last May. What was particularly lauded was Obama's renewed promise to close Guantánamo and overtures at ending the perpetual war on terror. However, what occurred the week prior to his speech was far more indicative of his administration's actual policy.
On May 16, the Senate Armed Services Committee held a hearing on reauthorizing the AUMF, which has formed the domestic legal basis for the global war on terror. At the hearing were Obama's top Pentagon officials, including Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Michael Sheehan and acting general counsel Robert Taylor. The debate was whether to reauthorize the AUMF to cover new threats, such as al-Shabaab in Somalia or similar groups in Mali and Syria that were not involved in 9/11 and have little to no ties to al-Qaeda - but share similar Islamic extremist goals.
The Obama administration believes the AUMF is adequate for its counterterrorism efforts. In the hearing, administration officials argued to that effect. It's stretched the law to cover not just al-Qaeda, but also the Taliban and "associated forces" - with federal courts backing the administration's interpretation. Former Defense Department general counsel Jeh Johnson, who served during Obama's first term, defined "associated forces" in a February 2012 speech at Yale University. According to Johnson, "An 'associated force' is not any terrorist group in the world that merely embraces the al-Qaeda ideology." It must be "an organized, armed group that has entered the fight alongside al-Qaeda" and "co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners."
Moreover, some legal advisers within the Obama administration have pondered whether the AUMF can cover "associates of associates" of al-Qaeda, according to The Washington Post. This could include the al-Nusra Front in Syria, Ansar al-Sharia in Northwestern Africa (the group responsible for attacking the US diplomatic post in Benghazi, Libya last year) and similar groups in Mali. In the administration's eyes, newer forces that arise as allies of al-Qaeda ("associated forces") are automatically covered by the AUMF, even if they had no role in the 9/11 attacks.
Even if the AUMF were repealed (something Obama hinted at supporting in his speech), the Obama administration would rely on other legal authorities to justify continuing permanent war. In the hearing, Sheehan said that the president "has many other authorities ... that he could use that he used prior to AUMF to deal with any other threats to our national security." Those "other authorities" include interpreting the laws of war to justify attacking al-Qaeda and similar forces around the world. Sens. Tim Kaine (D-Virginia) and Carl Levin (D-Michigan) also pointed that out and agreed with this in the hearing. As Kaine said, even if "Congress retracted the AUMF ... [t]there would still be the international law of war and other doctrine that the President and Congress could operate under."
Perhaps the most revealing exchange occurred between Sen. Lindsey Graham (R-South Carolina) and Obama's Pentagon officials, when Sheehand said that the global war on terror will last "at least 10 to 20 years":
Sen. Lindsey Graham: Do you agree with me, the war against radical Islam, or terror, whatever description you like to provide, will go on after the second term of President Obama?
Michael Sheehan: Senator, in my judgment, this is going to go on for quite a while, and, yes, beyond the second term of the president.
Graham: Yes, sir. I think it's at least 10 to 20 years.
Graham: OK. Do you agree with me that when it comes to international terrorism, we're talking about a worldwide struggle?
Sheehan: Absolutely, sir.
Graham: Would you agree with me the battlefield is wherever the enemy chooses to make it?
Sheehan: Yes, sir, from Boston to the FATA [the Federally Administered Tribal Areas of Pakistan].
Brig. Gen. Richard Gross: Yes, sir. I agree that the enemy decides where the battlefield is.
Graham: And it could be anyplace on the planet, and we have to be aware and able to act. And do you have the ability to act, and are you aware of the threats?
Sheehan: Yes, sir. We do have the ability to react, and we are tracking threats globally.
Graham: From my point of view, I think your analysis is correct, and I appreciate all of your service to our country."
It is within this context of global permanent war that Guantánamo and military commissions exist. The global war on terror has no clearly defined beginning. Depending on whom you talk to, it began either in 1996 or on September 11, 2001. Nor is there a definitive end for this "war." It could be10 years from now, 20, or even more.
Permanent war has neither clear beginning nor end. If one war against an elusive threat (communism, drugs, terror, etc.) or another country (Afghanistan, Pakistan, Yemen, Somalia, Mali) ends, then another begins, leaving no gaps between conflicts but continuing them in perpetuity. And that's not an accident. There is neither beginning nor end. Permanent war is just that - permanent. Prisoners at Guantánamo are, thus, prisoners of war in an endless war. This makes their detention - detention without charge or trial - indefinite.
Indefinite detention violates international human rights law, specifically the International Covenant on Civil and Political Rights. Yet, along with military commissions, indefinite detention is a practice embraced by President Barack Obama. He signed the Military Commissions Act of 2009, which added modest tweaks from the 2006 Act, but maintained the basic institutional framework. Moreover, Obama signed the National Defense Authorization Acts of 2012 and 2013, which both allow for the indefinite detention of US citizens. His plan for "closing Guantánamo" amounts to transferring indefinite detention from Cuban soil to American soil. In addition, the CIA utilizes a secret prison in Somalia to interrogate individuals suspected of terrorism. Therefore, the Obama administration has, in effect, normalized what made Guantánamo odious in the first place - indefinite detention and military commissions.
Not only has permanent war led to indefinite detention and military commissions, but it has also led to aggressive wars of occupation and smaller wars. These smaller wars include proxy wars in East Africa, gunship attacks, airstrikes, helicopter attacks, cruise missile attacks, private military contractors, kill-or-capture raids by special operations forces, and drone strikes. The wars in Iraq and Afghanistan have killed, collectively, hundreds of thousands to over a million people, made millions more into refugees, left babies with birth defects, and wreaked more untold human suffering. Meanwhile, other lethal counterterrorism operations, such as drone strikes, have killed and terrorized thousands in Pakistan, Yemen, and Somalia.
The burden of permanent war is also carried by the small portion of the population who join the military. Some join because they believe in the ideology of perpetual war and wish to get revenge for 9/11. However, not every soldier at Guantánamo agrees with such policies, particularly indefinite detention. As one sergeant said to Truthout, "Some of us are pacifists in fatigues." But they have no choice but to follow the orders of their superiors, even if they disagree with them, lest they end up like Bradley Manning.
Because the Obama administration has normalized indefinite detention and military commissions, these policies have a bipartisan stamp of approval. As a result, the public is largely inattentive to such issues and more supportive than it might otherwise be. According to a recent HuffPost/YouGov poll, 54 percent of Americans favor keeping Guantánamo prison open, while 27 percent think it should close and 19 percent are unsure. Thus, as the rest of the public pays less attention to these issues, the few communities that are forced to grapple with them are military families and populations victimized by American militarism.
Even as conventional wars in Iraq and Afghanistan wind down, new theaters of war open elsewhere. Should the prisons at Guantánamo close down, if the policies of indefinite detention and military commissions are not abandoned, the Guantánamo system will only move to an American prison, making the change cosmetic. Similar to how after Camp X-Ray closed, prisoners were transferred to different prisons at Guantánamo, but remained in indefinite detention. Covered in growing weeds with rotting wood, Camp X-Ray is largely forgotten, just as American permanent war receives a collective ho hum.