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Lisa Lynch on the G Word

The G Word: Guantanamo, the “Gulag” Backlash, and the Language of the Human Rights
by Lisa Lynch

THE G WORD: GUANTANAMO, THE “GULAG” BACKLASH,
AND THE LANGUAGE OF HUMAN RIGHTS

On May 25, 2005, Amnesty International released its annual report: as usual, the organization mapped out human rights abuses in countries around the world, but US media outlets focused almost entirely on the report’s claim that “Guantanamo is the gulag of our times.” [1] Three weeks later, Illinois Democratic Senator Richard Durbin made a similar pronouncement comparing an FBI account of detainee mistreatment to accounts of abuse at the Gulag, Nazi Germany, or Pol Pot’s Cambodia. These “gulagizations” of Guantanamo provoked considerable — and in Durbin’s case, quite unanticipated — outrage: Amnesty and Durbin were sharply rebuked by the political left, right and center, and the Bush Administration regained the upper hand in the public relations war over Guantanamo.

In what follows, I will look at the gulag controversy as a symptom of some of the difficulties surrounding the project of Guantanamo advocacy. The gulag incident, I will argue, shows us the limits of human rights language as a means of speaking on behalf of the Guantanamo detainees. My intention here is not to criticize the larger project of human rights advocacy, or the historical function of human rights language in advocacy projects.[2] Instead, I want to explore why a series of attempts to promote the notion that the detainees are victims of human rights abuses has resonated poorly with the American public and, for the most part, with the American media. With this in mind, I will briefly describe the recent history of human rights intervention on behalf of the Guantanamo detainees, and then turn to the response to Amnesty’s and Durbin’s remarks about Guantanamo, a response which shifted the debate about Guantanamo in a most unfortunate way.

GUANTANAMO, THE ADMINISTRATION, AND THE NGOS

   By now, it seems, the Bush Administration’s position on the Guantanamo detainees has been challenged on every possible front. Over the past five years, human rights NGOs, American lawyers and judges, and even the International Red Cross have attempted to transform Guantanamo from what was once described as a “legal black hole” to a place in which detainees and their lawyers had recourse to something other than the whims of their jailers.
In the dizzying dance of rhetoric that has ensued, however, not everyone has had equal billing on the Administration’s dance card. While the White House and Pentagon seemed willing to discuss why the Geneva Conventions and the Constitutional right to habeas corpus were not applicable to the Guantanamo detainees, they have also suggested that any discussion of international human rights law or negotiation with international human rights organizations was off of the table. Their position on human rights talk, expressed in early 2002 in the reply to a petition sent by the human rights arm of the Organization of American States, was that any attempt to apply human rights law to a situation in which the rules of war held sway would be a “startling” conflation of human rights law and humanitarian law that would produce an excess of rights for prisoners during a conflict. [3]

Aside from echoing an increasingly common position taken by states involved in conflict situations, this argument also reflected what scholars such as political theorist Daniel Whelan have described as the belief that the United States does not see itself as the object of human rights treaties.[4] Given this precedent, the human rights NGOs that approached the United States with the idea of dialogue about Guantanamo were not surprised by the lack of interest on the part of the Bush Administration. Still, the extent of the Administration’s rebuff was unexpected. When Amnesty International and Human Rights Watch first sent memoranda of objection to the Bush administration in the spring of 2002, the Administration refused even to acknowledge that it had received them, displaying what Human Rights Watch director Jamie Fellner called an “unprecedented” indifference to those groups.[5] The Administration also refused to allow HRW and other human rights groups to visit the base, and initially denied them access to the perpetually deferred military commissions (they were granted access in the spring of 2004 before the tribunals themselves were shut down). In response to such requests, the Administration cited the presence of the International Red Cross on the base as sufficient to protect the interest of the detainees.

Effectively shut out of any official conversations about Guantanamo, human rights organizations had to resort to the public shaming strategies typically used in campaigns involving human rights violations outside of the United States. As Thomas Risse argues in his 1999 collection The Power of Human Rights, such shaming strategies, which rely on turning public sentiment against offending governments, have become increasingly successful at promoting human rights agendas around the globe, resulting in a series of changes that Risse and his co-editors optimistically label a ‘norms cascade.’ Since shaming powerful governments is obviously much more difficult than shaming less powerful ones, shaming strategies have been less frequently aimed at the US than elsewhere. In the case of Guantanamo, however, both Amnesty and Human Rights Watch chose to attempt to shame the US from within and without, with web and media campaigns designed to generate sympathy for the detainees.

For the first two years of the Guantanamo detentions, however, US-based efforts to generate such sympathy largely fell flat. Between 2002 and 2004, American media accounts of Guantanamo — which largely regurgitated the same staged photo opportunities and interrogation scenes — did little to challenge the Administration’s characterization of the detainees as “very dangerous,” “the baddest of the bad” “very bad,” “ the worst of the worst,” and “dangerous men committed to harming Americans.” Even when evidence emerged that contradicted such statements (such as records that challenged the persistent assertion that most detainees were captured on the battlefield), it was difficult to come up with an alternative portrait of a group of men who had been rendered nameless and faceless through policies that prevented any unmediated contact between the base and the world outside.

Despite the real and rhetorical walls around Guantanamo public sentiment about the situation at Guantanamo began to change during the spring of 2004. Two key factors contributed to this: the Abu Ghraib photographs released in the spring of 2004, and the Supreme Court decision according the detainees habeas rights (Rasul v Bush). The Abu Ghraib photographs and the subsequent debate about torture brought the discussion of fundamental human rights back into the conversation. And, despite the Administration’s efforts to minimize the connection between Guantanamo and Abu Ghraib, the timing of the images doubtless had implications for the Court’s decision that the US judiciary system had jurisdiction over Guantanamo Bay.

By reaffirming the relevance of domestic law in the Guantanamo debate, Rasul recontextualized the issue in a manner that had a marked effect on media and public debate on Guantanamo. In early 2005, the case’s effect on the media was studied by Levick Strategic Communications, a public relations firm working for an organization advocating the release of the remaining Kuwaiti detainees. According to a report issued by the firm, by mid-summer 2004 moderate and conservative media outlets had not only begun to rearticulate the Guantanamo detention situation as a Constitutional issue, they also, sometimes surprisingly, sided with the courts over the Administration. “Conservative newspapers were much less willing than the
ir
liberal counterparts to discuss detainee abus
e or torture,” the report noted, “(but) the line between them was far less pronounced when it came to reporting on due process abrogation.”[6]

This moment during the late summer of 2004 — what some of us now see as a brief window of optimism in a increasingly grim struggle over what Guantanamo was and will become — was also a challenging and unusual moment for human rights organizations interested in the Guantanamo detainees. Ironically, the success of Rasul suggested to these groups that the most successful tactics for securing the detainees their due process rights was to steer away from the language of human rights, or even the language of the Geneva Conventions. Instead, they should focus on the idea that the prisoners at Guantanamo were entitled to the exceptional protections constitutionally afforded them by the American legal system.

Expressing faith in the effectiveness of the existing domestic laws of the country that one is trying to shame is can be a difficult position for a human rights organization to occupy. Though Amnesty and Human Rights Watch tried this strategy — among other things, each group sent out press releases celebrating the Supreme Court decision and the return to the rule of law at Guantanamo — they soon found reason to shift focus back to prisoner abuse. In the fall of 2004, the Freedom of Information Act requests issued by the American Civil Liberties Union produced documents suggesting that the FBI had observed and documented cases of mistreatment. At the same time, a leaked copy of a confidential Red Cross report claimed that some interrogation techniques used at Guantanamo were “tantamount to torture.” And finally, released detainees such as the “Tipton Three” began to tell stories of their imprisonment and interrogation that contradicted official accounts. [7]

Over the next several months, human rights organizations began to increasingly focus on the concerns raised by these statements and reports, and the American media followed suit. Soon, the fragile pro-habeas consensus among liberal, conservative and moderate media outlets described by Levick’s post-Rasul report began to disintegrate. In fact, as the issue of detainee treatment gained public attention, a backlash spurred by conservative politicians and media pundits reframed the debate once again by suggesting that the detainees might have actually been treated too well. This response, initially confined to a defensive reaction to accusations of abuse, eventually extended to a reconsideration of the idea that that the detainees should have habeas rights.

The first sign of this “rights” backlash came on May 1st , 2005, after Newsweek magazine claimed that a source had confirmed several incidents of Koran abuse at Guantanamo. The Administration reacted swiftly, blaming a series of anti-American riots in Afghanistan and other Arab nations on what they claimed was irresponsible reporting at Newsweek. They demanded and received a retraction from the magazine’s editorial board. Even though the Pentagon admitted several days later that there were, in fact, documented instances in which the Koran had been abused at Guantanamo (albeit not exactly the ones reported), most mainstream news outlets — and some trade publications, including the Columbia Journalism review — were sharply critical of Newsweek’s reporting. At the same time, conservative media outlets went beyond criticizing the veracity of the story. It wasn’t just that Newsweek had gotten the story wrong, some columnists and talk pundits claimed: even if they had gotten it right, publishing reports of Koran abuse was simply aiding the anti-American propaganda war.

The G Word

Ten days after Newsweek’s apology, while the magazine was still being criticized on the editorial pages of newspapers around the United States, Amnesty International released its 2005 report. Launched into an already charged climate, the report’s contention that “Guantanamo has become the gulag of our times, entrenching the notion that people can be detained without any recourse to the law,” became the slogan of a pre-scripted media maelstrom in the US, the framework for which was set in place by the condemnation of Newsweek. News reports documented the immediate and outraged response from the White House and Pentagon: Cheney called the phrasing “ridiculous,” Rumsfeld “reprehensible,” and Bush himself said that Amnesty was relying on the claims of “people who hate America” for evidence.   Since the Administration’s condemnation of Newsweek had resulted in a retraction, the media seemed to expect that Amnesty might also retract their worlds: in an interview on Fox News, for example, Amnesty director William Schulz was asked if he was willing to admit his organization had gone too far. Shulz explained that, while it was clear that Guantanamo was not a death camp, the analogy was mean to draw attention to the fact that the US detention centers were a network of interconnected prisons, their locations known only to those who operated them.[8]   

In fact — though Shulz didn’t point this out at the time — Amnesty was hardly alone in making the comparison between Guantanamo and the gulag. Left-leaning media outlets in Britain and the United States had been making precisely this point since at least November 2003, when law professor Elaine Cassel floated the analogy in an article in the online journal Counterpunch about the process of extraordinary rendition. In May of 2004, journalist Steven Grey wrote a cover story for the New Statesman describing the Bush Administration’s detention facilities as “America’s Gulag;” slightly later that month, former Clinton advisor Sidney Blumenthal wrote in the British newspaper The Guardian that “Bush has created what is in effect a gulag. It stretches from prisons in Afghanistan to Iraq, from Guantánamo to secret CIA prisons around the world.”

For the most part, however, the media coverage of Amnesty’s report did not take note of such journalistic precedents, nor, for that matter, of Shulz’s contention that the word “gulag” was used to situate Guantanamo within a network of other detention centers. Instead, for almost a month afterwards, much of the media commentary about Guantanamo focused on the differences between Camp Delta and Soviet forced labor camps. Historian Anne Applebaum’s work on gulags was cited to chide Amnesty for getting its history wrong, and Gulag survivors and their families wrote indignantly of the misappropriation of the term.

Despite all of the criticism, Shulz and Amnesty maintained that using the term had been a risky but not entirely ineffective shaming strategy.   In an NPR interview, Shulz ironically thanked the Bush Administration for responding so vehemently and thus “giving the story legs.” He had a point: whatever the debate inside the United States, the combination of the Amnesty report and the Newsweek article had heightened the international tension over Guantanamo. In fact, at the end of May and the beginning of June, it seemed as if Amnesty’s tactics might have helped to convince several influential figures that closing Guantanamo might be the best strategy. Several days after the Amnesty report, New York Times International Affairs Columnist Thomas Friedman — who had been generally supportive of the war on terror — wrote a column arguing that Guantanamo had become the “anti Statue of Liberty,” serving as a negative symbol that incited Muslims against the United States. On May 11, Republican Senator Mel Martinez made a similar pragmatic claim, declaring the base should be shut because it was costing more in terms of bad public relations than it could possibly be worth as a means of intelligence gathering.

Neither Friedman nor Martinez directly addressed what was actually happening at Guantanamo; in their analysis, the truth about the detainee treatment was less relevant than the fact that Guantanamo had become a p

ublic relations nightmare. Their refram
ing of the argument away from the detainees and their treatment seemed to provide a way of arguing against Guantanamo that didn’t require seeing the detainees as victims.   In other words, Friedman and Martinez’s claims about Guantanamo might be seen as an internal domestic reaction to a shaming strategy: without acknowledging that their might be truth behind the shaming, Martinez and Friedman seemed ready to acknowledge that the US had been shamed and to urge Americans to oppose Guantanamo in order to regain their positive image in the world.

Then, everything changed. Speaking to a near-empty Senate chamber, on the eve of hearings about due process rights for detainees at Guantanamo, Senator Richard Durbin tried once more to make the topic of abuse a subject of political conversation.   After reading from an FBI email that described detainees exposed to temperature extremes, left in their own feces, and shackled to the floor, Durbin commented: “If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.”

Unlike the Amnesty report, Durbin’s speech did not provoke an immediate response from the Bush Administration. Instead, it was first picked up by conservative talk show hosts such as Laura Ingraham and Rush Limbaugh, who immediately accused Durbin of directly attacking American troops. When the Administration did respond, it did so in the same parlance as Limbaugh and Ingraham: Secretary of Defense Donald Rumsfeld equated Durbin’s comments with a speech made by Jane Fonda on a visit to North Vietnam, when she had called American soldiers war criminals. Tom Delay called Durbin’s remarks a “stunning premeditated attack against the American military.” At first, Durbin tried to hold his ground, but after Democrats joined in the criticism of his analogy he tearfully apologized not just to survivors of the Holocaust and the Gulag, but also to members of the American military.   

In some ways, the Durbin affair played out as the histrionic and partisan extension of the Amnesty scandal, but there was a significant difference. While Amnesty aimed a conventional shaming strategy at an unconventional target (the US) Durbin’s Senate speech was a less conventional attempt to appropriate such shaming language to address issues of internal domestic politics. The response to Durbin changed the nature of the analogy: if Amnesty had intended to invoke a network of prisons and wound up evoking a government systemically abusing its prisoners, Durbin’s words were claimed by his opponents to refer not to abuse at the top, but to false accusations of the abuse of prisoners by individual soldiers.

Much more than the fallout from the Amnesty scandal, this interpretation of Durbin’s words cemented a chain of associations that proved deeply damaging for Guantanamo advocacy. Suddenly, there was plenty of sympathy for those at Guantanamo — not for the detainees, however, but instead for the soldiers guarding them.[9]   Though media and political rhetoric about the Guantanamo detainees has remained chimerical in the year and a half since the Gulag incident, this sense that the guards at Guantanamo have been victimized by pampered detainees has persisted, as has the related notion that the detainees have been granted an excess of rights. It was evident in a Sept 17 New York Times Magazine piece that suggested that the detainees manipulated Guantanamo’s minders into thinking that they would cooperate more if some conditions at the base were changed. It has also been evident in the way the on-again, off-again hunger strikes and the three detainee suicides at the base have been promoted in the media respectively as publicity stunts or as a form of “asymmetrical warfare” against the guards at the base.   And it was clearly evidenced by the decision by Congress to pass the Military Commission Act of 2006, denying detainees the habeas rights that were accorded them by the Supreme Court in 2004 and placing them once again in legal limbo.

It is possible, of course, that recent political shifts in Congress may help the detainees regain the rights they have been recently denied. On the floor of the Senate, two recently introduced bills, Senators Patrick Leahy and Arlen Specter’s Habeas Corpus Restoration Act and Senator Christopher Dodd’s Effective Terrorists Prosecution Act, aim to overturn the habeas provisions of the Military Commissions Act and also to ensure that military commissions comply with the due process requirements of the Geneva Conventions.[10]   But whether or not these bills meet with success, the fate of the detainees thus far poses a challenge to the teleological narrative of the ascendancy of human rights. Like other episodes in post 9/11 American in which the notion of rights have been redefined, the controversy over the “Gulagization” of Guantanamo reveals that that narrative of ascendancy is premised on the idea that human rights abuses are always external to the country from which one speaks; the language of human rights remains inadequate for creating change from within. For those of us who are persuaded that Guantanamo is only a small island in an archipelago of American abuses of human rights, the controversy is perhaps as instructive as depressing: it remains us that we need to pay closer attention to these moments, so that we might better understand how to persuade others — or ourselves — of the best ways to effect change.

Notes

[1] The text of this report is available for download at http://web.amnesty.org/report2005/index-eng
[2] Such critiques have been made elsewhere; see especially Makau Mutua, Human Rights: A Political and Cultural Critique and David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism.
[3] On March 13, 2002, the Human Rights Commission of the Organization of American States sent a petition to the US requesting that the Guantanamo detainees be given Geneva Convention protections (online at http://www.humanrightsnow.org/oasconventiononguantanamodetainees.htm). In a response issued four months later (online at http://www.state.gov/s/l/38642.htm), the Administration noted the “confusion” of the Commission. Even though the OAS petition invoked the Geneva Convention, the response noted, their larger argument was made using the language of human rights law — and by a body, the Human Rights Commission, responsible for the enforcement of human rights law. In times of conflict, the memorandum noted, humanitarian law prevailed and human rights law must yield to the “lex specialis” of humanitarian law. In fact, the memorandum noted, the “consequences of conflating the two bodies of law would be startling,” since human rights laws allow detainees protections much broader than allowed by humanitarian law.
[4] See Daniel Whelan, “Beyond the Black Heart: The United States and Human Rights,” in Human Rights and Human Welfare, Vol 3 (2003)
[5] This is drawn from personal conversations and interviews with Fellner and other human rights advocates during my own attempts to document Guantanamo advocacy around the time of the 2004 Supreme Court Case on Guantanamo: see The Guantanamobile Project (http://guantanamobile.org)
[6] This report has been taken offline.
[7] A graphic and compelling account of the interrogation of the British detainees Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed – known as the “Tipton Three” – is online at http://www.ccr-ny.org/v2/reports/report.asp?ObjID=4bUT8M23lk&Content=424
[8] This is the secret prison system described in more detail by the Washington Post’s Dana Priest in the fall of 2005 and effectively confirmed by President Bush in th

e fall of 2006.
[9] The extent to which
the guards became the real objects of sympathy at Guantanamo was made bizarrely evident in a July 21, 2005 editorial in The New York Times, which reacted to claims of sexual abuse of detainees at Guantanamo by bemoaning the fact that women in the US military were being degraded by being forced to act like lap dancers against their will.
[10] Thanks to my friend Belinda Cooper for reminding me of this.

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