Edited by Sam Thielman
NEXT WEEK, THE SENATE judiciary committee will hold a hearing about closing the detention facility at Guantanamo Bay. Its chairman, Sen. Dick Durbin, having watched multiple chances to shutter Guantanamo come and go, argued on the Senate floor on Tuesday that the Senate and the Biden administration must summon “the courage” to make the closure an overdue reality. In the course of an eloquent speech with a valorous objective, Durbin made some rhetorical choices I want to discuss.
It’s worth watching all 13 minutes of Durbin’s floor statement. He started out memorializing the recently deceased Ian Fishback, who, as an Army captain in 2005, told the Senate that military torture in Iraq was a crisis. Durbin summarized Majid Khan’s Guantanamo statement, making him the only senator I know of to engage with it, and said he wants to introduce an amendment to close Guantanamo “once and for all” into the (seemingly stalled) annual defense authorization. Along the way, he called out the Biden administration for not appointing a special envoy to negotiate transfers out of Guantanamo to foreign countries, which highlighted how much less Biden is doing on Gitmo than Obama did. He ended by asking his colleagues, “Do we have the courage to even debate this issue, and vote on it on the floor of the Senate?”
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But it couldn’t be a close-Guantanamo speech by a liberal without some unfortunate patriotic bromides. Guantanamo, Durbin continued, demonstrates how “American values… were cast aside after 9/11.” The facility has been open so long that “the Iraq war has begun and ended” and “a generation of conflict has come and gone.” Beyond the exorbitant $500 million taxpayers spend annually to keep open a forever-prison, “we have to acknowledge a larger truth,” Durbin declared. “Guantanamo does not reflect who we are or should be.”
Leave aside for the moment Durbin’s straight-up nonsense about the Iraq war, or the broader “generation of conflict” it emerges from, being finished. Here’s the larger truth that we truly do need to acknowledge: Our values are not found in what we say or what we write. Our values, our real values, are found in what we do. Our values are not the Fourth Amendment’s guarantee of security in our personal effects absent a warrant outlining probable cause of a crime; the Fifth Amendment’s guarantee of due process for those accused of one; or the Eighth Amendment’s prohibition of cruel and unusual punishment. Our values are surveillance capitalism, NSA bulk surveillance, warrantless FBI surveillance, CIA black sites and Guantanamo Bay. Because that’s what we do. That’s what we’ve done for a very long time. Guantanamo doesn’t reflect who we should be. But it most certainly reflects who we are.
America did not reach for these tools, and the other tools so familiar to the War on Terror, because 9/11 changed everything. When the White Lion carried the first kidnapped Africans to American shores in August 1619, its captives were restrained in what we in the post-9/11 world would understand as stress positions. Recently, while reading Andrew Delbanco’s The War Before The War, I was struck by how heavily newspaper cartoons and other contemporary imagery of the 1850 Fugitive Slave Act featured the kind of snarling dogs we saw inside Abu Ghraib. John Yoo’s March 2003 memo about the treatment of detainees in military custody, including at Guantanamo, literally cited an 1873 document from the attorney general justifying the Army’s imprisonment and killing of Modoc men who had been trying to return to their land in what is now northern California. In An Indigeneous People’s History of the United States, Roxanne Dunbar-Ortiz points out that fully 26 of 30 U.S. generals carrying out the post-1898 counterinsurgency in the Philippines, when U.S. military personnel began waterboarding people, served in the Indian Wars. The military interrogator who tortured Mohamadou Slahi at Guantanamo started out as a Chicago cop who tortured Black people. Post-9/11 America reached for these tools out of muscle memory. These are the tools that built America, from colony to empire.
Durbin called Guantanamo a place “where due process goes to die.” People like Kalief Browder might say it’s hardly just Guantanamo. When Durbin contrasts the federal criminal justice system with Guantanamo, he’s drawing a binary distinction. The truth is closer to a continuum. The so-called lawful alternative to Guantanamo was ready and willing to cage people like Adham Hassoun, who had never committed a single act of violence and whom the PATRIOT Act simply criminalized. The federal judges whom the Bush administration feared would open Guantanamo’s cages simply denied habeas-corpus petition after habeas-corpus petition. Mass incarceration made a mockery of due process before Guantanamo. The country that engaged in it was primed to formally revoke due process.
You can roll your eyes at this and say I’m focusing too much on the rhetorical flourishes of someone who’s trying to push the country in the direction I want it to go. I won’t argue that point.
But my focus is where it is because without reckoning with the deep American foundations of Guantanamo—and the broader War on Terror—American policymakers will simply do it all over again. I reiterate that QAnon fantasizes about throwing the political opposition to Donald Trump into Guantanamo. When GOP legislators describe socialists in Congress as the “Jihad Squad,” when the last administration calls people demonstrating for Black liberation terrorists and uses the counterterrorism tools of the Justice Department and the Department of Homeland Security against them, the reason to close Guantanamo is not found in liberal fairy tales about American values. The reason is self-preservation. Guantanamo is more than a series of cages. Every moment it remains open risks making it a threshold to an even darker future.
ONE FINAL REFLECTION ON Ian Fishback. In Fishback’s words, the direct wages of the Rumsfeld Pentagon’s flexibility about what constitutes humane treatment were “death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment.”
Durbin correctly called Fishback’s testimony the impetus for the Senate to pass the Detainee Treatment Act barring military torture. But he might also have considered the opposition that Fishback engendered, which I mention on page 80 of REIGN OF TERROR:
Alabama’s Senator [Jeff] Sessions implied Fishback was slandering the military: “Captain Fishback said he had seen at least one interrogation where prisoners were being abused. Now I don’t know what ‘abused’ means. I’m a former prosecutor. What does ‘abused’ mean?...
[John] McCain immediately demanded Sessions deliver an “abject and deep apology” to Fishback. Affecting innocence, Sessions insisted that all he had done was read Fishback’s account in The New York Times. It was the Senate’s sanctimonious, slanderous opponents of so-called torture who owed the military an apology, he continued. “Those in this Senate who have accused up and down members of the chain of command of the United States Army, the United States Marines, the Department of Defense of being – promoting policies to abuse prisoners, they ought to think about whether they should apologize,” Sessions fumed.
Everything Sessions treated as a calumny was an incontestable fact. Sessions' umbrage spoke to the purpose of the right-wing theater around naming torture: to reestablish and reinforce American innocence—at a time when people could see photographs from Abu Ghraib and Guantanamo for themselves—which is a necessary prerequisite for continuing to employ torture. By attacking Fishback, a future attorney general showed exactly how and why elite respect for post-9/11 military service was so frail: Anyone who stepped outside the real or perceived interests of the wars could have it stripped from them.
RIP to a brave man who died too young.