A return of the repressed: Symptom, fantasy and campaigns for justice for Guantánamo detainees post-2010
| Published date | 01 February 2018 |
| Author | Andreja Zevnik |
| DOI | 10.1177/1369148117734790 |
| Date | 01 February 2018 |
| Subject Matter | Articles |
https://doi.org/10.1177/1369148117734790
The British Journal of Politics and
International Relations
2018, Vol. 20(1) 206 –222
© The Author(s) 2017
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DOI: 10.1177/1369148117734790
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A return of the repressed:
Symptom, fantasy and
campaigns for justice for
Guantánamo detainees
post-2010
Andreja Zevnik
Abstract
The article develops a theory of the symptom and argues for a symptomal analysis of contemporary
political situations, in particularly those that resonate with exception. By focusing on Guantánamo
detainees and habeas corpus petitions, the article analyses the language of law and public attitude
towards the closure of the facility. The article shows how the legal situation of detainees post-
2010 is determined not by the binary distinctions (identity/difference, normal/exceptional) but
by attempts to eliminate these binaries and bring detainees under the normal rule of law. The
attempts to bring the detainees under the normal rule of law are social fantasies, that is different
narratives, which determine how we understand and engage with the law in Guantanamo.
Fantasies are always fragmented at their core, and Al-Adahi case with the lack of public response
to it reveals this fissure in the form of ‘the return of the repressed’. In doing so, the article shows
how the overcoming of the exception is a fantasy of modern politics and points to the moment
the repressed truth is revealed.
Keywords
Guantánamo, Jacques Lacan, law, public opinion, social fantasy, symptom, US
The treatment of detainees at the United States military base in Guantánamo has been a
hotly debated topic for more than 15 years now. Since its opening in January 2002 or
shortly after. International human rights lawyers, humanitarian organisations and non-
governmental organisations (NGOs) warned against the inhumane or exceptional treat-
ment of the detainees (Aradau, 2007). Neither prisoners of war nor enemy combatants,
Guantánamo detainees were positioned in a legal limbo. The Government of the United
Politics and International Relations, The University of Manchester, Manchester, UK
Corresponding author:
Andreja Zevnik, Politics, The University of Manchester, Arthur Lewis Building, Oxford Road, Manchester
M13 9PL, UK.
Email: andreja.zevnik@manchester.ac.uk
734790BPI0010.1177/1369148117734790The British Journal of Politics and International RelationsZevnik
research-article2017
Article
Zevnik 207
States, the Bush Administration, was adamant in stating that while laws of war do not
apply to these individuals, they would, nevertheless, be treated in a humane way
(Rumsfeld, 2002). Scholars began to describe the situation as an exception: as a situa-
tion where no laws apply or a situation with location-distinct laws, norms and princi-
ples (Aradau, 2007; Huysmans, 2008; Johns, 2005), often arguing for either a
re-examination of laws or a re-instatement of the suspended norm. This work often
drew on the endeavour of the international human rights lawyers and numerous human
rights NGOs who turn to law to seek justice for the detainees. In light of the United
Nations (UN; 2006) report on the status of Guantánamo detainees, which states that
human rights and legal protection are cornerstones of democratic societies, it is not
surprising that justice was sought through legal means—in particular through the right
to habeas corpus. Law is considered universal, and the mechanisms of human rights
protection rely on the universality of these principles (Scheuerman, 1994). With some
success, US-based NGOs such as Center for the Constitutional Rights and Human
Rights First began litigation processes on behalf of the detainees. By filing habeas cor-
pus petitions, they questioned grounds for the detainees’ detention and requested that
the evidence against them was presented to the court.
After long legal battles and a Supreme Court decision in Boumediene v. Bush (2008),
the detainees won the right to have their cases heard in front of the US courts. In July
2010, the District Court of Columbia Circuit Court of Appeals reversed a lower court’s
decision to grant habeas corpus in the case of Al-Adahi. In doing so, the court, arguably,
reshaped/lowered the standard of evidence the government has to produce as a justifica-
tion for detention (Denniston, 2010). Prior to Al-Adahi, the detainees won 59% of the first
34 petitions, whereas they have lost 92% of cases since (Denbeaux and Hafetz, 2012).1 In
legal circles, Al-Adahi is considered a turning point, marking a change in courts’ attitude
towards the detainees (Denbeaux and Hafetz, 2012). The court’s decision did not only
deny the habeas petition to Al-Adahi but, more importantly, it significantly lowered the
standard of evidence the Government has to produce, adding ‘conditional probability’ to
the evaluation of evidence. This ruling, as Wagstaff (2014: 247) writes, questions the
decision of the Supreme Court in Boumediene v. Bush, which promised ‘a robust review
of the legality of the Guantánamo detainees detention’. The Court of Appeals report
revoked the meaningful review of the evidence and instead replaced a practice of careful
juridical fact finding with a juridical defence of Government’s allegations, as Denbeaux
and Hafetz (2012) explain.
While legal battles determining the rights of Guantánamo detainees and the political
will penetrating court decisions are fascinating, my attention was caught by the relative
silence of global civil society that accompanied the aforementioned Circuit Court of
Appeals decision. Al-Adahi, in practice, contests the rights won by the detainees in
Boumedience v. Bush, and as lawyers have argued, impairs legal scrutiny of Government’s
reasons and evidence supporting individual detentions (Denbeaux and Hafetz, 2012;
Denniston, 2010; Wagstaff, 2014).2 Thus, a lack of public response to the decision in
Al-Adahi comes as a surprise.
Guantánamo and the war on terror are in (critical) international politics often discussed
in the context of exception and the works of Carl Schmitt, Giorgio Agamben, or Michel
Foucault. In these literatures, the exception reveals two significant political practices
(Aradau, 2007; Gregory, 2006; Huysmans, 2008; Johns, 2005; Ralph, 2009). First, it
shows that the politics of drawing lines between barbarian and civilised nations, which,
in turn, re-invokes the discourse of colonialism and imperialism seemingly left behind in
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