On November 14, I learned that conversations in delis are political. All I ordered that morning was a cup of coffee. The guy at the register, perhaps dedicated to the idea of service, gives me that and something I’m still having trouble digesting. He had been talking to customers about Eric Holder’s 9/11 trials announcement.
Addressing me although talking to the customer in front of me, he announces with palpable disdain, “Terrorists don’t deserve a fair trial.” Unable to respond, I hand him cash and receive, once again, surplus. Seventy-five cents and a question directed at me, but not to me, “What do you guys think?” Sensing that my response would not be the ‘right’ answer, I leave, saying nothing or perhaps everything.
“Terrorists don’t deserve a fair trial.” Six words, delivered with the kind of alacrity that indicates honesty, compel this question: when we are confronted by such a statement, what kinds of things must we negate or ‘overlook,’ in order to enable their coherence? And, importantly, how and why does this overlooking take place?
Let’s begin by reading some of the responses to the news of the 9/11 trials:
Rudy Giuliani: “Since when are we in the business of granting the wishes of terrorists?”
Governor Patterson: “…having those terrorists tried so close to the attack is going to be an encumbrance on all New Yorkers.”
Guy at the Deli: “Terrorists don’t deserve a fair trial”
Fundamentally, these statements require that we accept the ascription of guilt embedded in the term, ‘terrorist.’ They require also that we overlook multiple reversals where normative concepts become absurd and vice versa. We must overlook that a presumption of innocence is being replaced by a presumption of guilt. And, we must accept that sending suspected criminals to criminal courts is an anomaly.
The irony in all of this is that although Giuliani, Patterson and the guy at the deli are critiquing the Administration’s decision, they overlook that this decision indicates agreement, rather than opposition to their logic. Indeed, it is a presumption of guilt that enables Eric Holder to claim that after having reviewed all of the evidence in these cases, he is certain the accused will be successfully prosecuted.
In addition to the five men being tried in criminal courts, Eric Holder announced that five others would face Military Commissions in New York City. While the latter of these men are more representative of the detainees who remain at Guatanamo Bay, at least more so than Khalid Sheikh Mohammed, the decision to continue their trials in Military Commissions suggests that they are amongst the terrorists who don’t deserve a fair trial. Far from a caricature, this is precisely what the State asserts when it tries detainees in tribunals where lower evidentiary standards and normally inadmissible evidence is permitted. The future appears to be little consolation for the over 200 detainees who remain at Guantanamo Bay.
While the news of this second set of trials is being overlooked by a fixation on what seem to be show trials, the void of their absence is not particularly felt. Perhaps it cannot be, when it is being filled by statements like Congressman Shadegg’s of Arizona, who seemingly understands these trials to mark the beginning of an apocalypse: “I saw the mayor of New York today say, ‘We’re tough. We can do it.’ Well mayor, how are you going to feel when it’s your daughter that’s kidnapped at school by a terrorist?”
In order for this statement to achieve its desired effect – fear and trembling – we are expected to imagine scenarios in which detainees have somehow escaped the law or, perhaps more dangerously, are found “not guilty,” and set free to stroll amidst us in society! Given the difficulties that the Administration has faced in finding even a carceral home for detainees in the United States, those produced as ‘terrorists’ have an ice cubes chance in hell of being integrated into American society. Yet, such is the generative nature of the term “terrorist.” It enlivens the possibility of even the most impossible scenarios.
How do we come to be compelled by statements that invoke this brand of unlikely doom, indeed to the extent that we overlook? And, importantly, do we know that we partake in this overlooking, or has it become so habitual that we no longer know we are doing it?
One of the most obvious ways that this rhetoric is made compelling is through the institutionalization of ideas in the policies and practices of the State. When the previous Administration decided to embark upon a Global War on Terror that identified not simply nations such as Iraq and Afghanistan, but the ‘radical Islamist’ as its enemy, then capturing that enemy required that we reconstitute our legal and political processes and infrastructure. Executive power dictated the rule of law; Military Commissions were set up despite the presence of established Civil, Criminal and Courts Martial; the definition of enemy combatant was altered to enable maximum leverage for arbitrary detention; detention facilities were outsourced to locations where, it was hoped, Federal Law could not reach.
Because the enemy was allegedly everywhere, and detention processes were classified as State Secrets, we had little but the State’s version of the facts to rely upon. They told us that they were capturing terrorists and we accepted that this is what was happening. Couple this limited visibility with 9/11 memory making and we may even have felt a certain ethical duty to accept or overlook the means through which retribution was being sought.
The problem today, is that the heavy and inept hand of Bush-Cheney remains with Obama, despite a variety of name changes. While this Administration is willing to shut down Guantanamo, it is unwilling to stop what will now be called ‘prolonged detention.’ Bagram will more than likely become the new Guantanamo Bay, where detainees will undoubtedly be constructed as guilty through an all too familiar negation of legal rights. Amidst this overwhelming continuity, the rhetoric of the ‘terrorist’ will be repeated rather than reconstituted.
How do we understand this compulsive tendency towards repetition, and how might it explain why overlooking takes place?
Given that the term ‘terrorist’ is, and perhaps will always be, linked to the events of 9/11, one might understand repetition as a means of re-experiencing the trauma associated with that event and as a form of memory making.
An alternative reading is also possible, and requires thinking about repetition as a means of evading, rather than facing the trauma of 9/11. By equivocating detainees with ‘terrorists’, we effectively overlook the distinction between the real and imagined, and ensure ourselves a bottomless supply of detainees who stand in for the terrorist as players in a game of repetition. What this game reveals is an unspeakable relationship of exchange with none other than the figure of the terrorist; a game that continues even when we are playing with caricatures.
The issue is not simply that this game legitimizes our political agenda’s, but that it is linked to our sense of self. As long as we are playing, we maintain our identity as a nation of citizens in a post 9/11 world. The irony, however, is that so long as we are playing, we will never really live in a ‘post’ 9/11 world.
There is more at stake for us in keeping ‘terrorists’ detained than the fear that they may live amongst us. As the corporeality of detainees, alongside the materiality of detention centers like Guantanamo Bay threaten to be lost, so too is the figure of the terrorist who emerges through them. Who will we play with when they are gone? And, perhaps the most terrifying question of all, how will we then turn to ourselves?
Given this, efforts to shut down Guantanamo were bound to meet resistance. In a world generally moved by numbers, we overlook this set: that upwards of 55% of those historically detained at Guantanamo Bay have not even been accused of committing a hostile act against the United States and Coalition Forces; that 80 percent of the habeas petitions that have passed through Federal Courts have resulted in successful challenges. Instead we will fixate on the 20%, and construct our detention policies around figures like Khalid Sheikh Mohammed, whom we encounter as the rule rather than the exception.
Such are the roundabout ways through which we attain internal coherence: by overlooking that we are overlooking, and with good reason. “Terrorists don’t deserve a fair trial,” said the man at the deli, preaching to the converted.