Incarceration Nation

Guantánamo Bay to Pelican Bay

Prison Hunger Strikes Show That Our “Justice” System Is Out of Control

By Colin Dayan

Obama’s unique brand of legalism allows abuses like Gitmo’s hunger strikers to fade away under the lovely veneer of civility and the call for sensibleness.

The unholy spectacle of Guantánamo Bay again demands our attention. The military has now admitted that 104 of the remaining 166 prisoners there are on hunger strike. Forty-four are being force-fed. No matter that doctors are sworn to the maintenance of personal and medical ethics. They are determined to carry out what officials there have called “intensified assisted feeding” no matter the pain or indignity. Our Defense Department justifies this practice by assuring us that its aim is “to support the preservation of life by appropriate clinical means, in a humane manner.”

As we all know and have known since 2002, most of the men imprisoned at Guantánamo are not terrorists nor have they committed any crime under our laws. Bereft of rights and held in increasingly harsh conditions, those who protest by starving themselves are forced to live daily under brutal physical assault—but of the most clinically efficient kind. Innocence, as Hannah Arendt noted in The Origins of Totalitarianism1, forces the “rightless to endure as expendable objects.” It must be so, for “it seems easier to deprive a completely innocent person of legality than someone who has committed an offense.” Such a person is a lost entity, what she calls “a human being in general.”  

And this generalizable type is something like a ghost, easily believed not to exist, a phantasm we would do well to disregard. But the spectral anomaly can best be understood, as Arendt knows, by putting aside the human. Instead, she gives flesh to the unreal by considering animality. To be anonymous, to be the person whose name no longer matters, is not to be a lesser kind of human but rather “a stray dog who is just a dog in general.” 

Her strong distrust of humanitarian tactics, what humans promise to those from whom they have already removed recognition, leads her to expose the ruses of beneficence. She questions the meaning of care when it hobbles and destroys, and most of all when it masks destruction. Critical of the “Rights of Man” and “the uncertain sentiments of professional idealists,” she declares: “The groups they formed, the declarations they issued showed an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals.”

President Obama has publicly commented on this latest hunger strike.  On April 26, he said, “I don’t want these individuals to die.”  In a May 23 speech on terrorism, he admonished, “Look at our current situation, where we are force-feeding detainees who are…on a hunger strike… Is this who we are? ...Is that the America we want to leave our children?  Our sense of justice is stronger than that.”

Obama’s words are scarier than Bush’s assurance way back in 2007 that “This government does not torture people.” Scarier because they are smarter.  In his confrontation with the unseemliness of such suffering, Obama has engaged, on the one hand, in spurious generality, operating under excessive legalism, and, on the other, in empty repetition of the wish to close Guantánamo.

Yet the disciplinary and penal machinery of this country seems ever more entrenched, both here and abroad.  How does this happen? Are we lulled into inaction by Obama’s impressive displays of rationality and good judgment? Shaker Aamer, a legal resident of the United Kingdom, but until now for all practical purposes abandoned by the British government, went on hunger strike in 2005. He wrote in his diary: “I swear I have never seen such a devilish way of thinking as they seem to have.” 

It is indeed a devilish way of thinking, and thought has everything to do with it. That largest hunger strike, up till now, in which 131 prisoners participated, ended in 2006 with twice-daily force-feeding through nose tubes, a process that involves excruciating pain, bleeding, and vomiting. Speaking last week, Aamer, again on hunger strike, said: “The administration is getting ever more angry and doing everything they can to break our hunger strike. Honestly, I wish I was dead.”

How is it that whatever Obama does, whatever the extent of his impressive calm, the superior intent to explain, things continue to get worse and we become increasingly acquiescent—and hence complicit. And not just at Guantánamo, by the way, but in the isolation units of our own country, whether in state prisons like Pelican Bay—where prisoners have gone, and plan to go again, on hunger strike—or in federal supermax prisons such as ADX Florence, or, the newest example of impeccable containment in Thomson, Illinois. Jean Casella and James Ridgeway of Solitary Watch ( have laid out the Obama Administration’s 2014 budget for “Prisons and Detention:” “The FY 2014 Budget requests a total of $8.5 billion for federal prisons and detention, a 3.5 percent increase over the FY 2012 appropriated level.”

Extra-judicial imprisonment is Obama’s special brand of justice. On May 21, 2009, President Obama proposed the protracted, long-term incarceration of alleged terrorists. What he called a “legitimate legal framework” or more resolutely “an appropriate legal regime” for preventive detention, though wholly unconstitutional, is indistinct from the worst though least discussed excess of Guantánamo: the use of indefinite isolation as psychological torture. By legitimizing incapacitation without proven crimes or violations of law—without trial or charge—President Obama has rationalized solitary confinement. Preventive detention offshore becomes prolonged detention on the mainland, a legally convenient renaming of perpetual isolation.

At the time of this proposal in 2009, the President made the most of horrific imprisonment, the nightmare death-in-life of absolute isolation, part of what every American should recognize as “fundamental” to our “values.” But, again, mendacity and aversion are softened by rational expression, a call for pragmatism and consensus. He asks us to consider:  “Nobody has ever escaped from one of our federal supermax prisons, which hold hundreds of convicted terrorists.” But how, we might ask, did he arrive at this option for resolving the dilemma of the Guantánamo prisoners? He explained that this proposal came only after approaching “difficult questions with honesty and care and a dose of common sense.”

Obama’s unique brand of legalism allows abuses like Guantánamo’s hunger strikers—strapped to a chair, bound by the hands, feet, and head—to disappear, to fade away under the lovely veneer of civility and the call for sensibleness. Encased in an affect of pure reason, law under this current government encourages our acceptance of its excesses. At the same time it destroys the conditions under which choices can be made between alternative conceptions of right and wrong or justice and injustice.

No other president has been so busy as Obama in converting civil into penal life. Whether it is his attack on whistleblowers and journalists or the continued disregard of mass incarceration in this country—or universal Big Brother surveillance—the government he heads has subordinated citizens to a new kind of legitimacy where obvious injustice is repackaged, replacing actual wrongdoing with the unlimited possibilities of rationalization. The terms of his language, legal to the core, broaden the scope of what was before narrowly defined as penal and extend its activity to new fields.

I am not concerned here with the kind of question that so often greets a complaint about unspeakable treatment—where should these prisoners at Guantánamo go? That is a red herring. I want to think about a bigger question—the meaning of the global war on terror. That problem gains its significance not only because of the legal justifications for an ever-growing network of overseas prisons (far from being “legal black-holes,” whatever lies we are told about their status), but also because of what it means to us here in the homeland. 

Probable cause and due process protections of the Constitution are ignored and abolished for those labeled “terrorists” (i.e. people against whom no charges have been or ever will be brought), the “worst-of-the worst.” At the same time, the means used to achieve such aims ends up seeping into the precincts of the privileged. Under the perpetually shifting imperatives of what is heralded as security, a politically oriented persecution names and claims ever-larger groups of persons as “threats.”

So why do we forget about the prisoners of Guantánamo? Not because we do not care, but because their fate—to be held, forgotten, assaulted, and tortured—though more extreme than anything imaginable for us here on the inside, reminds us what it takes now to live, what it means to preserve our freedom, to keep at bay the inhospitable. We are in thrall to the casual but definite compromises that give our officials a broad license to kill. 

What price freedom? The question is not frivolous. Fear is a vice that takes root. We must ask not how we allow the existence of “black sites” (our overseas prisons), “frozen zones” (in the borough of Brooklyn), “security housing units,” “special management units,” “supermaxes” (throughout the United States), but rather how we live and breathe with a status that exempts us for the moment from being labeled as security threats. For, even though safe today, we live on a slippery slope.

If the Guantánamo hunger strikers are force-fed by medical personnel to “save lives,” as officials there claim, we need to think more deeply about what it means to be dying or dead. To be living consistently in a “dying situation” is a fate worse than death. That situation of perpetual decay, anxiety and degradation, though largely hidden from us, comes into sight as these living, willful, sentient beings are forced against every fiber of their being to be disfigured, reduced to nothing more than organs that can fail, where pain is torture only if it causes death.

We live against this backdrop of benign assault, where sanitized language helps us to cope with restraint and its attendant terrors, more spectacular because legally inflicted. Our individuality, our ego, even our sphere of influence are infected by this collective harm. Is this the natural consequence of our belief in the powerful apparatus of virtue and freedom, justice and law?

The decisive factor is this: the mass of creaturely material exposed to state violence is what now constitutes our nation, legally and politically and socially. The non-entities, sometimes unnamed, always unrecognized and hugely silenced in spite of their resistance, are rapidly becoming who we are. The spirits of these disposables work powerfully on the minds and lives of the as yet included, the not yet ostracized. We need to hear their voices, for they are many. 

I am reminded of Derek Walcott’s remarkable words in the poem “Schooner Flight:” “either I’m nobody or I’m a nation.” We are at a crossroads between a sanctioned status quo and the residue of whatever lies outside it. Though disappeared, these ever more generalizable ghosts possess us. They are our shadow lives. They alert us to a new kind of reckoning with the values we thought we knew.

Colin Dayan is Robert Penn Warren Professor in the Humanities at Vanderbilt University and author of The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, The Story of Cruel and Unusual, and Haiti, History and the Gods.

—AlterNet, June 24, 2013

1 The Origins of Totalitarianism, By Hanna Arendt, Harvest Book (Book 244), Published March 21, 1973