Evaluating Extraordinary Rendition

Oriane Simon

A thesis in fulfilment of the requirements for the degree of

Doctor of Philosophy

School of Physical, Environmental and Mathematical Sciences

Faculty of Geography

March 2017

Table of Contents

Chapter 1 Extraordinary Rendition ...... 1

1.1 El-Masri’s Extraordinary Rendition ...... 7

1.2 Why Analyse Extraordinary Rendition? ...... 21

1.3 Previous Research and My Approach ...... 27

1.4 My approach ...... 32

1.5 Thesis Outline ...... 39

Chapter 2 From Moral and Legal Issues to a Micropolitical Evaluation ...... 43

2.1 Previous Analyses of Extraordinary Rendition...... 43

2.2 Problematising the Idea of Being ‘Beyond Jurisdiction’ ...... 66

2.3 Creativity in Evaluating Extraordinary Rendition ...... 81

2.4 Evaluating Extraordinary Rendition ...... 90

Chapter 3 Transforming Beings ...... 93

3.1 A Rich World of Affections ...... 94

3.2 Creativity of Judicial Proceedings ...... 120

3.3 The Creativity of Human Beings ...... 131

Chapter 4 From Judgement to Evaluation ...... 143

4.1 An Institutionalised System of Evaluation ...... 144

4.2 Decisions and Actions of Litigating Actors ...... 157

i 4.3 From Judgement to the Capacity to Evaluate ...... 172

4.4 Analysing Extraordinary Rendition ...... 189

Chapter 5 Prisoners’ and Perpetrators’ Capacities ...... 198

5.1 Affections Shaping Prisoners ...... 199

5.2 Prisoners and Perpetrators Affect Each Other ...... 227

5.3 Perpetrators’ Affections and their Capacity for Responsibility ...... 233

5.4 Habits of Evaluating ...... 249

Chapter 6 Institutionalised Procedures Evaluating Extraordinary Rendition

...... 255

6.1 Difficulties and Potential of Preparing a Judicial Case ...... 256

6.2 Lengthy and Fragile Processes of Determining Legal Categories ...... 275

6.3 Lawyers’ and Activists’ Affections in Litigations in and About Gitmo ...... 296

6.4 Evaluating Within Judicial Proceedings ...... 307

Chapter 7 Why Foster the Capacity to Evaluate? ...... 314

References ...... 330

Appendix — Extraordinary Rendition Ordeals ...... 367

ii Acknowledgements

I am forever indebted and grateful to my supervisor Dr Scott Sharpe for taking up my PhD. This thesis would not have been possible without his energetic enthusiasm and encouragement. His support throughout my candidature, the continuous intellectual challenges he provided and accompanied me through were essential to it. Equally, I am extremely grateful to my co-supervisor Dr Maria Hynes for her guiding thoughts, inspiring insights and supportive comments. Both have given me invaluable insights into the Deleuzian philosophy and have greatly improved the readability, coherence and conciseness of this thesis with their diligent proofreading and invaluable editing skills.

Thanks are further due to my co-supervisor Dr Alec Thornton for accompanying me on this PhD journey, his cheering words and proofreading. I further wish to thank Associate Professor Paul Tranter and Dr Peter McIntyre for their helpful comments as well as the innumerable UNSW Canberra staff for their various support all along my PhD.

Special thanks go to the reading group, The Difference Laboratory, which Dr

Scott Sharpe, Dr Maria Hynes and Dr John-David Dewsbury set up, and which introduced me to the Deleuzian philosophy. This reading group laid the foundations for my understanding of Deleuze, exposed me to important literature, and supported the development of my thoughts through informed discussions.

Thus, I thank all the participants of the reading group for their helpful and intellectual contribution as well as comradeship: Breeze Mojel, Clare Southerton,

Miranda Bruce, Philippa Barter, Rohan Todd and Seimeng Lai.

iii I cannot thank enough my interviewees who took the time to share their experience with me for the purpose of this study. In this regard, special thanks are due to my co-supervisor Professor Clinton Fernandes, who got me in contact with several key informants.

In addition, not only have many friends enriched my PhD experience at

UNSW Canberra, but they also provided invaluable support. Besides many friends in Australia and afar who enriched my PhD years, special thanks go to you

Ekaterina Kamlovskaya, Fiona Beck and Samuel Reid, Hannah Barrowman, Julia

McQuoid, and Pierrick Chalaye for their friendship and help in difficult times. I am further extremely grateful to Miranda Bruce and Benjamin Chaplin for their unwavering support regarding both my thesis and my life. Thank you for your amazing friendship: you are at least as exceptional as asparagus cake!

I would also like to extend my thanks to my parents, Maryline Simon and

Roland Simon, as well as my Brother Colin Simon for their unshakable belief in me and their support from afar. I would not be here without you.

And finally, but not least, I am much indebted to my loving partner Emilio

Michael Schraner for all his sacrifices and his unconditional support throughout the PhD. Heartfelt gratitude for your love, your belief in me, and for always pushing me further. Thank you, amongst other things, for introducing me to cycling during the mental challenges of doing a PhD and pushing me all the way to doing the Medio Fondo.

iv Chapter 1

Extraordinary Rendition

I didn’t have to sleep dep [deprive] somebody for three weeks. I could have ...you know, I could have said no let them go to sleep, and just go home. […] at 22 years old I had no business being in there. Just on a maturity level. You can’t know...it was a combination of that and I mean I was drunk on the power that I had there. The power that I had at 22 years old was disgusting. I mean I was really responsible for the lives of 20 human beings. And you know they couldn’t...they couldn’t go take a piss or shit unless I said it was okay. And that’s a lot of power to give somebody when they’re 22 years old (Corsetti, 2013a, no pagination).

I remember the requests said the music will only be up to such-and-such decibel and research has shown that this level, you know, cannot harm the hearing... and I was absolutely disturbed and baffled and perplexed, because this had absolutely nothing to do with how I had been trained. This had absolutely nothing to do with what the army had taught us was allowed. This had absolutely nothing to do with what experienced interrogators, through years of interrogation had taught me and told me

— with many specific stories — works. It was extremely

1 uncomfortable for me and it was also uncomfortable

because I was coming in as the first time there had been a

civilian Team Chief. I was the first female Team Chief. […]

And it just seemed wrong and I could not rationally imagine

how this would work. And something that I was very, very

fortunate with, was that when I had made a decision that I

was going to say no to this, I went and talked to another

Team Chief who was there. […] I went to him and I said, ‘I

want to not approve this.’ And everybody around me

assumed that this would just keep going on. And it was

amazing. He said, ‘Thank God! Finally, somebody! You’re

absolutely doing the right thing’ (Bryson, 2011, no

pagination).

Why do some people engage in ethically dubious practices? Why do some people abuse while others do not? The questions Evaluating Extraordinary Rendition follows concern how the capacity to evaluate functions, how it affects extraordinary rendition, and how in turn it is affected by the practice.

Extraordinary rendition denotes the practice of transferring prisoners across borders without following due legal procedures and for a purpose other than trial

(Galella and Espósito 2012). The purposes of transfers are most often interrogation, torture, (indefinite) detention, and shaping the prisoners into interrogation and torture responsive subjects (Anderson, 2014; D’Arcus, 2014;

Weaver & Pallitto, 2010). The two quotes from interrogators above raise questions

2 similar to those that Hannah Arendt (1964) asked with regard to the prominent

Nazi, Adolf Eichmann. In her book on Eichmann and in later texts, Arendt was concerned with the issue of how moral values can seemingly vanish, leaving some people with an apparent inability to judge right from wrong. What Arendt (2003) deems outrageous and astonishing is not the deeds of ‘bad guys’ but those of the

‘normal’ person of whom such deeds are not expected. She posits that the ‘banality of evil’ consists in the failure to think and to judge.

Two well-known psychological experiments have been concerned with how some people turn evil and how they legitimate their abusive actions. In the 1960s,

Stanley Milgram’s controversial experiment analysed how obedience to an authority enabled the participant to give supposedly strong up to deathly electroshocks to another participant (Russell 2014). Milgram points towards the importance of the senses in increasing and decreasing the likelihood of perpetrators to inflict harm: Russel (2014) argues that the physical separation between the shock-inflictor and shock-receiver increased the readiness to inflict harm. Citing Meeus and Raaijmakers, Russel (2014, 208) concludes that Milgram’s experiment shows that the experiment is not about “the inability of his subjects to understand the difference between right and wrong [...] but their failure to care about the difference in a way that would have made it the controlling factor in their behavior ([29], pp. 424–25).” The other well-known experiment is Philip

Zimbardo’s Stanford prison experiment, which sets out that ordinary people can turn into ‘sadistic’ warders. The experiment points out that authority has to be asserted and accepted, that perpetrators are affected by their relationships between each other and with the prisoners. It further sets out the role of

3 rationalisation in making the perpetrators feel better about their deeds. This last point is on the same note as Arendt’s delineation of perpetrators’ self-deception to which I will return.

Both experiments, then, highlight two crucial aspects. On one hand, they illustrate the dangers of research methodologies. For instance, Milgram’s experiment is controversial for it shows the dangers of harming the participants’ relationships (Russell 2014). Zimbardo’s (2007) prison experiment documents that the participants are potentially harmed for life. In addition, the researchers themselves, as Zimbardo (2007) points out, are affected by their work. On the other hand, both experiments highlight the power of social structures for leading people to obey orders and not to care about the moral evaluation (‘good’ versus

‘bad’) of an action. They further hint at the importance of the relationships between perpetrators. Investigating ‘obedience’ behaviour is a rich field of research, Russell (2014) concludes. With this in mind, this thesis argues that extraordinary rendition raises questions about the seeming inability of some people to evaluate their decisions and actions. Extraordinary rendition is not simply the result of a few ‘bad apples’ (Clarke 2012; McCoy 2006; Zimbardo 2007).

This thesis explores the thorny problem of ethical evaluation in the context of extraordinary rendition. I develop this concept of evaluation by reading Arendt’s thesis on judgement through Gilles Deleuze’s work on the problem of ethical evaluation, in order to emphasise that the personal capacity to evaluate involves an active and ongoing assessment of what increases and decreases one’s capacities for action. Arendt’s (1964, 1992, 2003) conception of judgement provides valuable insights into the problem of how individuals judge without the ‘bannisters’ of

4 universal principles. Arendt argues that externally given rules can no longer suffice as guarantors and that the personal capacity to judge right from wrong emerges and becomes crucial precisely because universal rules have lost their sway (Beiner

1992). I supplement Arendt’s theory of judgement with Deleuze’s concept of ethical evaluation, with an eye to addressing the impasses that Arendt runs into; namely, the divide between active and passive capacities and the divide between the private, personal and the public realm (Beiner 1992). Deleuze’s ethical evaluation involves an immanent evaluation of modes of existence and does not rely on transcendental moral standards, since the latter do not take into consideration the individual beings’ bodily and mental dispositions, nor its milieu, and in this respect hinder the evaluation of the variability of one’s powers (Smith

2007). A Deleuzian approach enables me to conceptualise responsibility, not as naturally given, but as bound up with capacities, which are effects of the forces that constitute experience. The growing importance in social theory of an ontology of force is crucial for the thesis, then, insofar as it starts not with individuated beings with given attributes, but with the swarming energies, appetites, desires and affections, both human and non-human, that constitute individuated beings and events.

My thesis elaborates upon the geographical elements of this practice of evaluation by tracing how the visceral experiences involved in extraordinary rendition affect all the actors involved. The questions driving this thesis are: how can actors evaluate? How can the capacity to evaluate be fostered and why should it be? And then, what are the actors’ potentials for responsibility? I demonstrate that the idea of cultivating the capacity to evaluate has implications for judicial

5 proceedings. In particular, it challenges the assumption of the human as a being imbued with a natural capacity for responsibility, a notion that judicial proceedings presuppose. On one hand, then, I challenge the sovereign conception of human beings presupposed in classical conceptions of judicial systems, in order to draw out the complex composition of, and the perpetual variation in, the capacity to evaluate. Here I draw on the philosophy of Deleuze, his interpretation by non-representational geographers and Baruch Spinoza’s (1994) understanding of beings as complexes of ideas and bodies. Through the work of Gilbert Simondon

(2009b), I highlight the importance of the interior and exterior milieu which shapes the very individual who acts and evaluates. To conceptualise the varying mental capacities I draw on the work of Hasana Sharp (2011) and Ben Anderson

(2014). On the other hand, my approach problematises the interpretation of judicial proceedings as processes of subsuming particularities under given legal categories. To do so, it draws upon Edward Mussawir (2011) and Alexandre

Lefebvre (2008), who point out the creativity of judicial proceedings. I re- formulate judicial proceedings as an institutionalised system of evaluation in order to emphasise the fragile composition of this system and the potential for novelty within judicial structures and litigations. I argue that the determination of categories is in itself not straightforwardly given, but is enacted and re-enacted through the decisions and actions of actors.

While the thesis undertakes its own empirical study into extraordinary rendition by means of in-depth interviews and archival work, in this first chapter I want to provide an immediate entry point into the complexities of evaluating the practice, by drawing on a relatively well-known case of extraordinary rendition;

6 namely, the ordeal of Khaled El-Masri, documented in Dick Marty’s (2006) report for the Council of Europe. Having used this case to give a sense of the extraordinary visceral intensities involved in the practice in Section 1.1, I go in

Section 1.2 to give a more general introduction to the practice of extraordinary rendition. Section 1.3 summarises the conventional approaches to the practice and sketches my own approach to it, while Section 1.4 provides an overview of the trajectory that the thesis follows.

1.1 El-Masri’s Extraordinary Rendition

El-Masri’s extraordinary rendition is typical in many regards and well suited to sketch the practice, because it is well documented (El-Masri 2006;

Hutchinson et al. 2013; Marty 2006). Yet it also bears some significant differences to other documented instances. His ordeal is most distinct from others recorded in that his detention was comparatively short, in that he was not brought to

Guantánamo Bay’s prison complex (Gitmo or GTMO), and in that he was not subjected to enhanced interrogation techniques (EITs). Many prisoners of extraordinary rendition have been arrested while attempting to cross state borders, and so was El-Masri (Singh 2013). He was abducted on 31 December

2003, when crossing the Serbian-Macedonian border in a coach (El-Masri 2006;

Marty 2006; Vervaele 2013). The Macedonian border officials alleged problems with his passport and ordered him out of the bus (El-Masri 2006; Marty 2006).

Allegedly, El-Masri was mistaken for a suspected terrorist (El-Masri 2006;

Hutchinson et al. 2013; Marty 2006).

7 The involvement of foreign states’ officials is typical of extraordinary rendition (Hutchinson et al. 2013; Marty 2006; Singh 2013). While a few people have been seized directly by US agents, many have been arrested by non-US officials, with or without US help (Hutchinson et al. 2013; Marty 2006; Singh

2013). In addition, only a small percentage of prisoners have been captured on the battlefield of the war on terror (The Justice Campaign 2014a). The Macedonian officials brought El-Masri to a hotel in Skopje, where they detained and interrogated him (Amnesty International 2008; El-Masri 2005, 2006). The curtains were constantly drawn, he was not permitted to leave the room and he was threatened with guns (El-Masri 2005, 2006; Watt et al. 2008). Moreover, El-Masri was detained incommunicado, that is, he was not allowed to contact anyone

(Amnesty International 2008; Marty 2006; Singh 2013). To protest against his treatment, El-Masri went on hunger strike after 13 days (Amnesty International

2008; Marty 2006; Singh 2013). US officials were already involved at that time, but were keeping a low profile by forwarding their questions to the Macedonian intelligence agents (Marty 2006). After about three weeks, El-Masri was transferred into US custody (El-Masri 2005, 2006; Marty 2006). In addition, he was most likely interrogated by a German official while in US custody (Amnesty

International 2008; El-Masri 2005, 2006).

A characteristic of extraordinary rendition is the transfer across borders without due legal process. In El-Masri’s case, the Macedonian officials brought him to an unknown location, in which CIA agents prepared him for his transfer to the secret detention site Salt Pit, north of Kabul in Afghanistan (El-Masri 2006; Marty

2006; Singh 2013). As part of the transfer preparations, El-Masri underwent a

8 ‘medical examination’ at the hand of US agents (ECHR 2012a; El-Masri 2006; Watt et al. 2008), though this term conceals the degree of brutality involved in these procedures. Indeed, the European Court of Human Rights (ECHR) asserts that the physical force and measures for the transfer were excessive, unjustified, and that they were used purposefully to punish, intimidate, and cause pain (Registrar of the

Court 2012). El-Masri vividly describes the brutality of the standard procedures of transfer preparation and of the transfer itself:

As I was led into this room, I felt two people violently grab

my arms, one from the right side and the other from the left.

They bent both my arms backwards. This violent motion

caused me a lot of pain. I was beaten severely from all sides.

I then felt someone else grab my head with both hands so I

was unable to move. Others sliced my clothes off. I was left

in my underwear. Even this they attempted to take off. I

tried to resist at first, shouting out loudly for them to stop,

but my efforts were in vain. The pain from the beatings was

severe. I was terrified and utterly humiliated. My assailants

continued to beat me, and finally they stripped me

completely naked and threw me to the ground. My

assailants pulled my arms back and I felt a boot in the small

of my back. I then felt a stick or some other hard object

being forced in my anus. I realized I was being sodomized.

Of all the acts these men perpetrated against me, this was

9 the most degrading and shameful. I was then pulled to my

feet and pushed into the corner of a room. My feet were

tied together, and then, for the first time since the hotel,

they took off my blindfold. As soon as it was removed, a

very bright flashlight went off and I was temporarily

blinded. I believe from the sounds that they had taken

photographs of me throughout. […] When I regained my

vision, I saw seven to eight men standing around me, all

dressed in black, with hoods and black gloves. […] I was

dressed in a diaper, over which they fitted a dark blue

sports suit with short sleeves and legs. I was once again

blindfolded, my ears were plugged with cotton, and

headphones were placed over my ears. A bag was placed

over my head and a belt around my waist. My hands were

chained to the belt. They put something hard over my nose.

Because of the bag, breathing was getting harder and

harder for me. I struggled for breath and began to panic. I

pictured myself like the images I had seen in the media of

the Muslims that were brought to Guantánamo (El-Masri

2006, 9–10).

Arriving at Salt Pit, US agents beat El-Masri again and then left him in a small, dirty, and cold concrete cell with only a dirty blanket, old and torn cloths, and a bottle of foul water (Amnesty International 2008; El-Masri 2005; Watt et al.

10 2008). He stayed in this solitary cell for the next four months, with no reading or writing material, and without being allowed once outside (El-Masri 2005; Watt et al. 2008).

I quote this material at length to give a sense of the extreme intensity of this practice of bodily and mental torture, carried out, as it is, beyond national borders of jurisdiction, with the effect of producing a torture responsive subject. The abusive interrogation is a crucial part of extraordinary rendition and encompasses techniques with different intensities of coercion. The CIA’s argument for its techniques is that they lower the prisoners’ capacity to resist (Bradbury 2005). In his first night, six or eight masked men interrogated El-Masri by means of threats, insults, and shoving (El-Masri 2005; Watt et al. 2008). The interrogators accused him of travelling to Jalalabad (Afghanistan) with a false passport and wanted to know if he knew alleged extremists or if he had attended Palestinian training camps, which he all truthfully denied (El-Masri 2005, 2006; Watt et al. 2008). The day-to-day operations of extraordinary rendition induce multiple and intense affections. All victims of extraordinary rendition suffered abuses, yet not all prisoners were subjected to the EITs. As El-Masri was not subjected to them, I present the intensity of suffering in both body and mind that these interrogation techniques induce quoting Zubaydah’s experience:

They restrained me to a metal bed that had many belts in

every direction. I was totally restrained to the point that I

was unable to make any movement whatsoever. They

restrained me in a lying down position […] After they

11 restrained my body, they restrained my head as well with the help of strong plastic cushions on the sides, which made it impossible for me to move it, not even for one centimeter to the left or one centimeter to the right, and obviously neither upward nor downward. At any rate, I didn’t understand the reason for this very strong restraint and found them suddenly putting a black cloth over my head and covered it completely. I suddenly felt water being poured. It shocked me because it was very cold. But the water didn’t stop. So the idea was not to torture me with very cold water in a very cold environment. They could have done that all over my body which would made me startle and shiver. Yet the water that was being continuously poured and flowed over my face was indeed aimed at giving me the feeling of drowning resulting from a feeling of suffocation. And this is exactly what happened.

They kept pouring water and concentrating on my nose and my mouth until I really felt I was drowning and my chest was just about to explode from the lack of oxygen. Indeed that was the first time and the first day that I felt I was going to die from drowning. Yet I didn’t know what happened. All I know or remember is that I started vomiting water but also rice and string beans. They set the bed in a vertical position while I was restrained to it. They

12 removed the hood. And as soon as I emptied my stomach from the water and the food they brought back the bed to the normal horizontal position. I was coughing a lot and I was trying to get some breath. I was breathing with difficulties and I was barely inhaling little carbon dioxide

[sic]. They stopped me from doing what I was doing and only few minutes went by before they put back the black cloth over my head again. I tried to speak or yell with my head covered: ‘I don’t know anything’ but I suddenly felt the water flowing again. To make a long story short, they performed the same operation three times on that day (the first day). And every time they were deflating the cushion that was holding my head a little bit and so I would feel my head lowered a little bit which made it every time more difficult for me to bear water flowing inside of me. On the third time, they lowered it more and more, (I’m not sure if every time they were increasing the duration of the drowning procedure. It is difficult to say, but that was my feeling.) The suffering was more intense every time they interrupted the operation for few minutes to allow me to breath or vomit and then they would resume again. After the third time on that day (the first day), they kept the hood with all the water on my head and started asking me questions that I was answering with difficulties due to the

13 troubles I had breathing and to the fact that I didn’t know

what they were asking me about. (Zubaydah, cited by

“Excerpts From Newly Disclosed Documents” 2016, 7–8).

This quote describes the experience of water boarding, the most decried technique of all the EITs, which is now illegal (Barclay 2017). To highlight the intense viscerality of seemingly lesser forms of abuse I further quote Zubaydah’s experience of one of the ‘lesser’ EITs, that of ‘confinement in a box’:

It was so painful. As soon as they locked me up inside the

box I tried my best to sit up, but in vain, for the box was too

short. I tried to take a curled position but to no vain, for it

was too tight. It was a serious problem. I spent long

countless hours inside. I felt I was going to explode from

bending my legs and my back and from being unable to

spread them not even for short instants. The very strong

pain made me scream unconsciously. The contractions in

my muscles and nerves were increasing with every hour,

every minute and every second that were passing by,

especially in the wounds I already had in my belly and thigh,

let alone the pain in my head that was predominantly

stronger than any other pain in my body (Zubaydah, cited

by “Excerpts From Newly Disclosed Documents” 2016, 6).

14 I return to El-Masri’s quote on his transfer because it eludes to a crucial point that the thesis explores; namely, that prisoners use their bodily and mental perceptions to re-territorialise themselves, which is to say to re-assert their position in space and time and so ultimately their ‘selves’. For, as Derek Gregory

(2006) points out, the self-concept is anchored in space and time. El-Masri’s descriptions indicate that prisoners cannot but respond to the treatment they experience. For example, El-Masri (2006) knew when he exited the plane that he was not back in Germany, because it was January and he felt the hot and dry air.

Another clue was that the walls of his cell were “covered in crude Arabic, Urdu, and

Farsi writing” (El-Masri 2006, 11). He further assessed the duration of his transfers via the sun. In his (2006, 11) words, “[t]hrough a small opening near the roof of the cell I could see the red, setting sun. It was only then that I realized that I had been travelling for some 24 hours.” In another instance, El-Masri recognised the car used for his release as a Japanese minivan. He (2006, 21) explains: “I sensed that it was a Toyota F-model, by the sound it made when it drove over bumps. I had driven an identical model myself when I was back in Germany.”

Another characteristic feature of extraordinary rendition is indefinite detention. The detention is often secret, incommunicado and without charge. The detention site in Guantánamo Bay is the most infamous detention site related to extraordinary rendition (Gregory 2006; Mountz 2013; Reid-Henry 2007). As of 1

March 2017, it had detained 780 prisoners since its use in the war on terror (HRF

2017). Most of the prisoners were released after years of detention without ever being charged; and today 41 prisoners remain there (HRF 2017). Only eight prisoners were convicted through the Military Commission, Gitmo’s ad hoc

15 implemented and widely decried judicial system, and of these convictions three were completely overturned and one partially (HRF 2017). As mentioned, El-Masri was never detained in Gitmo and his detention time was comparatively short

(Marty 2006; Singh 2013). Yet, he too was denied meeting German representatives, a lawyer and going to court (El-Masri 2005, 2006). US officials eventually released El-Masri in Albania in May 2004, without ever charging him.

His release hints at the complications of releasing incommunicado or indefinitely detained prisoners (ECHR 2010; El-Masri 2006; Interights 2011). The night before his release, El-Masri’s perpetrators advised him to keep his abduction secret and to prepare himself for his journey. In his (2006, 20) voice: “[t]he doctor requested that I not eat or drink after that night, as I wasn’t going to be permitted to use the bathroom during the flight”. For the transfer he was again handcuffed and blindfolded and flown to Albania, not to his residency in Germany (El-Masri 2005,

2006; Watt et al. 2008). He was then driven up and down the mountains for hours.

Eventually they stopped and his captors removed his handcuff and blindfold and gave him back his belongings. El-Masri was told to walk down the deserted road and not to look back (El-Masri 2005, 2006; Watt et al. 2008). He feared being shot in the back, but just down the road, Albanian officials took him up and after only a couple of hours and a few questions, they put him on a flight to Germany (El-Masri

2005, 2006; Watt et al. 2008). In El-Masri’s (2006, 20–22) words:

‘Sam’ explained that we would eventually land in a

European country but that it would not be Germany itself.

When he told me this, it heightened my persistent fear that

16 I was not going to be flown home, but rather taken to another country and executed. The flight took about six to seven hours. […] I was driven in the car, up and down mountains, on paved and unpaved roads for more than three hours. The vehicle came to a halt and I was aware of the three men in the car getting out, closing the doors and then three men climbing in to the vehicle. All of them had

South European/Slavic accents […] The vehicle proceeded to drive for another three hours, again up and down mountains and on paved and unpaved roads. Eventually, the vehicle was brought to a halt. I was taken out of the car and before my blindfold was removed, one of my captors turned me around. He then removed the blindfold, sliced the cuffs from my wrists, gave me my suitcase and passport, and directed me to walk down a path without turning back.

I heard the car leave and began to walk as instructed. It was dark. No one was around. As I walked I feared that I was about to be shot in the back and left to die. […] As I came round a corner in the road, I came across three armed men.

They immediately asked for my passport. When they saw that my German passport had no Albanian visa, they said I was illegal and asked me what I was doing in Albania without the necessary authorization.

17 El-Masri’s extraordinary rendition highlights two aspects of concern in the thesis; namely, the lasting effects of the prisoners’ experiences and the effects on significant others. Being released in Albania and set on a plane to Germany did not end El-Masri’s nightmare (Davidson 2012; DokZentrum 2015). On one hand, abuses have long-term psychological effects (Davidson 2012). For instance, El-

Masri now experiences aggressive outbursts and has encountered troubles with the police since his traumatic ordeal (Davidson 2012; DokZentrum 2015). And on the other hand, his wife and children had left the country during the period of his detainment, as they did not know where El-Masri was and if he would ever come back (Davidson 2012; El-Masri 2005, 2006).

With regard to my thesis’ questions about the capacity to evaluate, the judicial proceedings within and on extraordinary rendition’s cases are central. El-

Masri’s ordeal further emphasises the seeming lack of or few consequences despite the asserted illegality of the practice. Most typical of extraordinary rendition is that despite its asserted illegality, all litigation claims lodged before US courts were dismissed (Singh 2013). For example, El-Masri’s claims lodged in the US were rejected on grounds of state secrets, both in the District Court and the Court of

Appeal (Lobel 2008; Vervaele 2013). State secrecy was claimed by the US government, because further litigations “would expose means, methods, and operational details of the CIA’s overseas operations” (Beeson et al. 2007, 10).

Moreover, the German government did not request the extradition of the US officials involved (Vervaele 2013); it decided not to proceed in order to “avoid an open conflict with the American authorities” (BBC News, 2007, no pagination).

However, his claim against Macedonia is one of a few successful cases recognising

18 extraordinary rendition prisoners and condemning a participating state. The claim was lodged in July 2009 before the ECHR (ECHR 2010) and in December 2012 the court ruled that Macedonia was to give 60,000 Euros compensation to El-Masri

(Registrar of the Court 2012). Moreover, the court recognised the violation of the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, the right to respect for private and family life and the right to an effective remedy (Registrar of the Court 2012).

El-Masri’s litigation claims illustrates the complexity of judicial proceedings and their reliance on both judicial structures and the litigation labour of actors, which my thesis examines. The criteria to assess the credibility of the prisoner’s statements with regard to the place of offence, the perpetrators, and the offence are the levels of details, coherence, and consistency, which are produced through verifying and cross-referencing bits of information (ECHR 2012a, 2012b; Marty

2006). The ECHR’s (2012a) ruling assessed El-Masri’s account as credible beyond doubt based on different and some surprising bits of information. The large amount of indirect evidence gathered in the inquiries and by the investigations support El-Masri’s account (2012a). For example, the ruling cites:

(b) flight logs confirming that a CIA-chartered Gulfstream

aircraft with the tail number N982RK took off from Kabul

on 28 May 2004 and landed at a military airbase in Albania

called Bezat-Kuçova Aerodrome;

(c) scientific testing of the applicant’s hair follicles,

conducted pursuant to a German criminal investigation,

19 confirming that he had spent time in a South Asian country

and had been deprived of food for an extended period of

time;

(d) geological records that confirm the applicant’s

recollection of minor earthquakes during his alleged

detention in Afghanistan;

(e) sketches that the applicant drew of the layout of the

Afghan prison, which were immediately recognisable to

another rendition victim who had been detained by US

agents in Afghanistan (ECHR 2012a, 49).

Scholars make out three characteristics of extraordinary rendition despite it lacking an official definition (Galella and Espósito 2012; Satterthwaite and Fisher

2006; Vervaele 2013). One consequence of the vagueness around definition is that scholars use different names to denote the practice: amongst others, it is called rendition to torture (Satterthwaite and Fisher 2006), irregular rendition (Neil

2013), torture by proxy (Satterthwaite 2007), or illegal rendition (Addicott 2006).

Scholars commonly assert that extraordinary rendition “involves the extra-legal transfer of a person by a state to the jurisdiction of another state or quasi-stateless jurisdiction for the purpose of detention and interrogation” (D’Arcus 2014, 91).

The first characteristic, then, is the transfer to an US-run detention facility or third states without due legal procedures (Center for Human Rights and Global Justice

(CHRGJ), 2008). Transfers to countries where the prisoners are ‘more likely than not’ to suffer abuses is prohibited by the principle of non-refoulement (Association

20 of the Bar of the City of New York (ABCNY) & CHRGJ, 2004; Satterthwaite and

Fisher 2006). The second characteristic is the coercive methods of interrogation and torture. A central concern of researchers is the use of the EITs, which are widely assessed to constitute torture and thus to be illegal (ABCNY and CHRGJ

2004; Satterthwaite and Fisher 2006). The third characteristic is the indefinite length of detention, which can also be secret, incommunicado or both. This indefinite detention, which often implies a detention without charges, is deemed illegal (Neil 2013; Sadat 2005; Weissbrodt and Bergquist 2006).

1.2 Why Analyse Extraordinary Rendition?

The thesis posits that analysing extraordinary rendition is important, firstly, because it raises extreme moral and legal concerns. On one hand, various assessments of the practice have pointed out that it undermines the democratic state by blurring the split between the executive, legislative, and judicative branches of power (Fisher 2008; Satterthwaite 2006). The war on terror engenders practices that undermine the very values that the US sets out to protect, as Stuart Elden (2009) emphasises. Extraordinary rendition is “tearing apart

America’s tradition of legal democracy” (Gutierrez 2006, 15) and the citizens’ rights are threatened (Amoore 2009; DiMento and Gilbert 2006; Gutierrez 2006).

Donald Gutierrez (2006, 15) goes so far as to say that “the day might not be far off when American citizens are jarred by a loud knock on their door or picked up off the street by masked government agents and whisked away to some unidentified location”. On the other hand, extraordinary rendition diminishes the moral standing of human beings and undermines Human Rights (Singh 2013). It raises

21 the obvious moral issue of torture (Parry 2005; Siems 2011; Weissbrodt and

Bergquist 2006). US counter-terrorism actions tend to erase the differences between various Islamic groups and so create the very ‘global Islamism’ the US presupposes (Elden 2009). In addition, the very practice of extraordinary rendition bears the danger of radicalising previously moderate people and so may breed terrorism (Clarke, 2012; Rose, 2004; Soufan, 2011).

My thesis demonstrates that extraordinary rendition is especially topical, as most prisoners have not been officially recognised and barely any perpetrators have been held responsible. Only a few prisoners, who are mostly citizens or residents of western countries, have claimed for their rights. The US authorities have failed to hold any perpetrator accountable so far, as the US judges have dismissed cases by accepting the administrations’ argument of state secrecy privilege and the assertion of a lack of judicial competence to address national security and foreign policy issues (Singh 2013). Yet, there is a still ongoing litigation in the US against the two psychologists contracted to develop the EITs

(Anderson, 2017). In Europe, a Spanish judge has convicted perpetrators in absentia, the ECHR condemned Macedonia for its participation in El-Masri’s ordeal

(Hengst 2012), and it recently also condemned Poland for its support in the extraordinary renditions of Zubaydah (ECHR 2015b) and Al-Nashiri (ECHR

2015a).

Secondly, analysing extraordinary rendition is important precisely because it is not as extra-ordinary as its name and media representations imply.

Extraordinary rendition relies on a massive infrastructure spread across the globe and necessitates various forms of direct and indirect support of many countries in

22 order to function (Marty 2006; Paglen and Thompson 2006; Singh 2013). The scope of the practice is hard to estimate due to issues of definition and to secrecy strategies (Clarke 2012; Marty 2006; Singh 2013). Amrit Singh’s (2013) report delineates the involvement of 54 countries beside the US and a recent analysis adds another 15 countries (Cordell 2017). The estimation of the number of prisoners is more divergent. Depending on the definition used, the estimates range from about one hundred, according to former CIA Director George Tenet in 2006

(Satterthwaite and Fisher 2006; Vervaele 2013), up to several hundred (Lobel

2008; Weaver and Pallitto 2010), and even several thousand (Sadat 2005). The lack of definition further affects the assessment of the practice’s continuation or end. In 2008, CHRGJ (2008) affirmed that the secrecy and reluctance of disclosure by the US government is not due to national security, but to concealing the continued operation of the programme. And while former President Barack Obama unsuccessfully demanded the closure of Gitmo, he did not stop extraordinary rendition. The order Obama issued allows the use of CIA facilities for short-term detention (Obama 2009; Singh 2013). The implication is that the abuses are ongoing (Singh 2013). For instance, recent prisoners are Ahmed Warsame, who was held on a naval ship (Currier and Lee 2012); Mohamed Ibrahim Ahmed, an

Eritrean citizen held in Nigeria (Singh 2013); and three European citizens arrested in Djibouti in August 2012 (Singh 2013). And since the start of Obama’s presidency, sixteen prisoners have been sent to Somali prisons (Currier and Lee

2012).

The thesis traces the origins of US extraordinary rendition practice across time and space and points out that it is a practice pre-dating the attacks of

23 September 11, 2001 and not solely perpetrated by the US. Yet, the lacking official definition also complicates the historical tracing and the distinction of extraordinary rendition from other practices. Previous research most often situates extraordinary rendition’s beginning during the Reagan administration.

The Reagan administration introduced rendition to justice in 1986 to avoid the issues of extradition (Satterthwaite and Fisher 2006; Vervaele 2013; Weaver and

Pallitto 2010). Extraditions are legal procedures that follow a treaty or statute between states; yet not all states share an extradition agreement and these procedures can be lengthy (Weaver and Pallitto 2010). In addition, there is no guaranteed success, as the foreign state might refuse to extradite the person

(Galella and Espósito 2012; Weaver and Pallitto 2010). In contrast to extradition, rendition to justice is not regulated by any treaty and the Torture by Proxy Report

(ABCNY and CHRGJ 2004) asserts that it is illegal under both US domestic law and international law. Rendition to justice usually encompasses the capture of a person, movement of the prisoner to another state, and bringing him/her before a court (Parry 2005; Vervaele 2013). An arrest warrant or conviction exists before abducting the suspected criminal. Rendition to justice has been practiced in small numbers and each operation has been approved beforehand (Singh 2013). The distinctions between the three practices of extradition, rendition to justice, and extraordinary rendition are ambivalent and contradictory. Scholars use the terms differently, sometimes conflating them (see Weaver and Pallitto 2010; Weissbrodt and Bergquist 2006). However, many scholars assess that the practice(s) took an important turn after the attack of September 11, 2001. For example, Satterthwaite and Fisher (2006) affirm that the scope and use of rendition to justice were

24 extended. Weaver and Pallitto (2010) assert that the aim became to obtain information from suspected terrorists. And Patricio Galella and Carlos Espósito

(2012) similarly argue that the goal is no longer prosecution, but interrogation and detention. Furthermore, they point out that there is no longer the requirement of starting a criminal proceeding prior to the abduction.

The thesis argues that analysing extraordinary rendition is important because it is not a singular peculiarity, but rather surrounded by similar practices across time and space. Early examples are Napoleon Bonaparte’s ordeal in the early 18th century (MacKenzie 2010) as well as that of former Congolese leader

Lumumba (Weissman 2010). Alan Clarke (2012) affirms that rendition practices reach back to the 19th century’s practice of returning escaped slaves to their owners. A most prominent case sometimes linked to extraordinary rendition is that of Adolph Eichmann. In 1960, Mossad agents abducted him in Argentina and brought him to Israel, where he was tried and sentenced to death (Arendt 1964;

Vervaele 2013). A more recent example is Project Phoenix, a US hunter-killer operation of the Vietnam War (McSherry 2014). In this programme, paramilitary squads and criminal thugs perpetrated terror, while the US officials provided lists of suspects, interrogated, supervised, controlled, and financed the programme

(McSherry 2014). A non-US example is the Latin American Operation Cóndor, which was a secret intelligence and operation system of Argentina, Chile, Uruguay,

Paraguay, Bolivia, Brazil, Ecuador, and Peru, which coordinated information, as well as the capture, torture, disappearance and executions of political opponents

(Galella and Espósito 2012; McSherry 2014). Contemporary examples are

Ecuador’s secret prisons (Garces 2014) and France’s and Spain’s use of rendition

25 to justice with Somali pirates (Vervaele 2013). In addition, Israel and Syria use the same rhetoric to justify their interventions in Lebanon as the US does for the war on terror (Elden 2009). Moreover, some countries joined the ‘coalition of the willing’ of the war on terror for their own reasons (Elden 2009; Khan 2008). For example, the Prime Minister of Ethiopia, Meles Zenawi, affirms that “[w]e don’t look at this as us joining the U.S. on the war on terrorism, we see it as the U.S. finally joining us because we’ve been victims for many years” (cited by Elden 2009,

105–6).

Thirdly, the thesis argues that to analyse the extreme practice of extraordinary rendition is important, because extraordinary rendition highlights issues relevant to other, more widespread practices. As Stephen Weissman (2010) points out, analysing extreme practices provides a better understanding of all secret practices. For instance, issues around the territory, sovereignty, subject status of the actors involved and applicability of domestic and international laws are encountered when regulating the high sea (Farmer 2013) and the cyber-net

(Farmer 2013; Raustiala 2005). Regulating people’s mobility also deals with these issues. Examples are the FBI’s tactic of cancelling suspected terrorists’ visas, while they are travelling in foreign countries (ACLU 2014) as well as cancelling peoples’ passports on suspicion of terrorism (ABC News Online 2016; Remeikis 2016). Most importantly, the infringements upon these issues are central to the topical practices of immigration and asylum seeker detention (Gill 2009; Mountz et al.

2012) and drone killings (Anderson, 2012; Gregory, 2011).

26 1.3 Previous Research and My Approach

This section provides an overview of the most important findings of previous research and investigations of extraordinary rendition upon which my research draws. One important aspect previous studies have pointed out is that the practice involves many actors. While previous studies and investigations highlight the predominant role of the CIA, they also hint at the participation of other US organisations and other countries (Marty 2006; Satterthwaite and Fisher 2006;

Singh 2013). For instance, these studies and investigations describe the involvement of the US military, US elite forces, immigration officials, and contractors (ABCNY and CHRGJ 2004; Paglen and Thompson 2006; Singh 2013), the Department of Defense (DoD), and the FBI (Satterthwaite and Fisher 2006;

Soufan 2011; Vervaele 2013). Importantly, these studies and investigations also document the involvement of foreign countries. Their involvement ranges from pro-active help — such as capture, transfer, torture, interrogation, and detention on behalf of the US — to passive support – such as allowing the use of their air space or tolerating the activity of foreign officials on their sovereign territory

(Marty 2006; Singh 2013). Weissman (2010) stresses that close relationships between CIA agents and representatives of the US government with officials from other governments make the attribution of responsibility almost impossible.

A most important insight previous research provides concerns the legal status of the practice. Extraordinary rendition is overwhelmingly recognised as illegal, yet this illegality is seemingly without consequences (D’Arcus 2014;

Satterthwaite and Fisher 2006; Vervaele 2013). Previous research and analyses aim to assert the illegality of the sub-practices or argue that a space of law

27 suspension is created in which the prisoners are ‘stripped’ of their rights (D’Arcus

2014; Gregory 2006; Reid-Henry 2007). Bruce D’Arcus (2014) explains that

Guantánamo Bay has been a prominent case of creatively re-interpreting the relationship between law and sovereignty. The Bush administration created novel detention sites and repositioned older sites in spaces characterised by “less-than- clear sovereignty” (D’Arcus 2014, 95). The “uneven territoriality of sovereignty” is strategically exploited so as to strip legal subjects of their rights and to avoid state obligations (D’Arcus 2014, 95). That is, the Bush administration sought to limit rights claims to a narrower range of people (D’Arcus 2014). D’Arcus (2014) concludes that extraordinary rendition is a means to avoid the spatial and legal constraints that limited what the Bush administration could do and where it could do it.

My thesis does not dispute the illegality of the practice, but is intrigued by the seeming lack of consequences despite its status as illegal. It argues that the manipulation of the law does not explain why some people engage in ethically dubious practices nor the seeming lack of consequences of asserting the practice’s illegality. Previous legal studies assert that the Bush administration has intentionally misread or re-interpreted legal orders in order to situate prisoners and perpetrators ‘beyond jurisdiction’ (D’Arcus 2014; Satterthwaite and Fisher

2006; Vervaele 2013). Jurisdiction is the “exercise of judicial authority, or […] power of declaring and administering law or justice” (Oxford English Dictionary

2017). It is based on the specifications of the territory in which an offence occurred, the perpetrators’ subject status and the alleged transgressions of law

(Valverde 2009). Legal studies therefore aim to re-assert jurisdiction by

28 establishing the territory, subject status and legal order. They assert that the practice is illegal under US domestic law, citing the Foreign Affairs Reform and

Restructuring Act of 1998 (FARRA), the Fourth Amendment, the Fifth Amendment and the Immigration Act (Weaver and Pallitto 2010). Most commonly, however, scholars draw on international legal orders to assert the practice’s illegality. They cite the Geneva Convention (GC) (Weaver and Pallitto 2010), the Convention against Torture (CAT) (Sadat 2005; Satterthwaite and Fisher 2006; Weaver and

Pallitto 2010), the International Covenant on Civil and Political Rights (ICCPR)

(Sadat 2005; Satterthwaite and Fisher 2006; Weaver and Pallitto 2010) and the

European Convention on Human Rights (Satterthwaite and Fisher 2006; Vervaele

2013). Studies overall assess extraordinary rendition as illegal despite diverging in their assessments of what exactly constitutes its illegality (ABCNY and CHRGJ

2004; Neil 2013; Satterthwaite and Fisher 2006).

My thesis posits that a spatial analysis of extraordinary rendition provides an alternative approach to explaining why some people engage in illegal practices, without merely assuming a straightforward manipulation of the law. A geographical analysis contributes to the previous studies by highlighting the multiplication of spaces of law based on the place of offence, the controlling authorities, and the transgressions of law. As Nick Vaughan-Williams’ (2008, 328) suggests, we have to “untie an interrogation of the relation between borders, territory, and law from an assumed correlation between fixed territorial and juridical limits”. The first advantage of a geographical approach, then, is to problematise the link between territory and sovereignty as well as the very conception of territory. This is all the more important, since sovereignty is

29 conventionally understood as the unlimited and indivisible rule of a state over its territory and the people within it (Agnew 2005). It follows that contemporary

(state) sovereignty is understood as “the absolute territorial organization of political authority”, Agnew (2005, 439) deplores. The assumption is that sovereignty is inherently territorial and exclusively based on states (Agnew 2005).

Most notably, Elden (2007) and John Agnew (2005) have problematised and established the concept of territory as a political and historical contingent concept.

Territory is a governing tool establishing exclusive and differential law (Agnew

2005).

The second advantage of a geographical analysis is to problematise the conception of authority, perpetrators’ affiliations, and the very conception of a responsible human subject. Agnew (2005) points out that state authority has never been complete and that it competes with other authorities. Authority is fragmented across the public-private continuum and at different regional, state and international levels (Allen & Cochrane, 2010; Barkan, 2011; Scott, Cafaggi, &

Senden, 2011). For instance, the rivalry between the CIA, Military and FBI has affected extraordinary rendition (Hickman 2015; Soufan 2011). Moreover, human beings have to be turned into subjects of the law (Lefebvre, 2011; Mussawir,

2011). Personhood is an achieved normative category and represents a freed human being morally responsible for its action (Sharp 2011). In Sharp’s (2011, 12) words, the problem is that “[w]ith the notion of personhood we represent ourselves as freed of natural determination and thereby morally responsible for our actions. Not only, then, are we persons rather than things, we are rational and not merely human.”

30 The third advantage of a geographical approach is to draw attention to the co-existing legal orders. As the legal geographer Nicholas Blomley (2003) illustrates, legal orders enact boundaries of inclusion and exclusion. Legal orders differentiate between subjects and objects and allocate them different rights and duties (Delaney 2001). Consequently, the very definition of an offence prioritises the application of one jurisdiction over another. One example for differential treatment is that Gitmo detains only non-US citizens (Stafford Smith 2007a).

Another example is that the British citizens were released comparatively early due to the British government exercising pressure on the US, whereas other countries’ citizens remained for much longer (Mori 2014).

Previous geographical research on extraordinary rendition has analysed extraordinary rendition predominantly using Agamben’s concept of the space of exception and so has provided important insight into the complexity of spaces of law and the production of the right-less status of prisoners. Most notably, Gregory

(2006), Claudio Minca (2006), and Bülent Diken and Carsten Laustsen (2006b) argue that the concept of bare life provides a tool to analyse the law suspension at

Gitmo and the right-less status of the prisoners in the war on terror. The merit of these studies is to emphasise the purposeful production of spaces of law suspension and the stripping away of prisoners’ rights (D’Arcus 2014; Gregory

2006; Reid-Henry 2007). They describe that places are simultaneously under and outside of US jurisdiction. An example for this ambiguity is that the US government argued that Gitmo lies outside US jurisdiction for the prisoners’ disputation of their detention without charge, while the government all along asserted the applicability of US ecology laws protecting iguanas (Reid-Henry 2007) and supported the

31 practice of fining those who killed iguanas on the base (Khan 2008; Reid-Henry

2007; Stafford Smith 2007a).

Yet, this thesis points out that the conventional legal and geographical approaches leave the question open of how people can perpetrate the ethically dubious practices of extraordinary rendition. Asserting the illegality of the practice through mobilising the concept of spaces of exception does not explain the functioning of extraordinary rendition nor its effect on human beings, their capacities and responsibility, nor on judicial proceedings. The metanarrative of exception promotes the idea that, in a society increasingly struck by globalised and normalised fear, exceptional measures are justified (Pain 2009). Previous research has focused on human intentionality declaring a space of exception. Yet, this thesis argues that extraordinary rendition has important effects beyond actors’ intentions. Thereby, these approaches implicitly deny human beings’ agency and depict them as malleable at will, as Rachel Pain (2009) analyses.

1.4 My approach

I analyse extraordinary rendition by means of a case study approach based on archival and in-depth interview methods in order to draw out to the minute and intensive transformations of the various involved human beings’ capacities to feel, think, and act. Beyond the documentation of legal cases, NGOs such as American

Civil Liberties Union (ACLU), Amnesty International, Human Rights First, or The

Rendition Project provided much information. I analysed and further used the information to prepare the in-depth interviews with Human Rights lawyers and investigators. The interviewees, who worked and sometimes still work on

32 extraordinary rendition, contributed crucial data that demonstrate the viscerality and the wide-ranging effects of the practice.

After long deliberation I opted for using the descriptive denotation of prisoner, rather than victim or survivor. Following Hilberg (1992), I originally used the term victim, but this term implicitly stresses the passivity and surrender to manipulation. In contrast, the term survivor emphasises that the victims of extraordinary rendition are not simply disempowered by manipulations. Yet, not every victim of extraordinary rendition survived. In addition, the term survivor bears the implicit connotation that the survivor’s self somehow ‘survived’ the experience and has re-surfaced after the survivor’s release. As this thesis makes the point that selves constantly evolve, and thus, cannot ‘survive’ such practices and that human beings are not simply disempowered I thus used for the term prisoner.

My approach foregrounds the embodied nature of extraordinary rendition in order to highlight how its day-to-day operations affect the actors involved and their capacity for responsibility. The thesis argues that responsibility is the result of the actor’s capacity to think and evaluate, which implies that responsibility relies on the actors’ habits of evaluating. Most importantly, these capacities are the effect of affections and are varying (Anderson, 2014; Sharp, 2011; Spinoza, 1994).

Therefore, I argue that the capacity to evaluate is a habit of being in the world, which needs cultivation through individual human beings and social structures.

This thesis posits the capacity to evaluate as crucial for the capacity to be responsible.

33 The thesis’ approach to responsibility differs from the conventional geographical approaches. Responsibility is conventionally embedded within complex power-geometries and conceptualised in terms of relations between actors. For instance, post-colonial geographers situate responsibility within a

“context-driven, relational analyses that stressed the mutual constitution of sometimes distant places and people” (Noxolo, Raghuram, and Madge 2011, 419).

Importantly, Pat Noxolo, Parvati Raghuram, and Clare Madge (2011, 423) point towards the agency of the oppressed and cite Mbembe, who argues that “the slave nevertheless is able to draw almost any object, instrument, language, or gesture into a performance and then stylize it. (2003, 22)”. An issue of this understanding of responsibility is that this distinction hides the prisoners’ potential for agency

(Laliberté 2015; Noxolo, Raghuram, and Madge 2011). It is important to free responsibility from given standards, because, as Noxolo, Raghuram, and Madge

(2011, 420) point out, there is “no institutional parameters for assessing responsible action”. Thus, they conclude that what exactly constitutes a responsible relationship or practice is always situational and provisional.

On a similar note, Nicole Laliberté (2015, 60) emphasises that “we must move beyond the binary of guilty/not guilty in our conceptualization of responsibility for injustices promoted by the legalistic approach to rights”. One has to move beyond “the active/passive binary by highlighting the everyday negotiations of multiple and conflicting rights and responsibilities”, because

“individuals play multiple roles – at times being responsible for others and at times being another’s responsibility” (Laliberté 2015, 60). Laliberté (2015, 63) hints at the dangerous “assumption that promoting human rights equates to promoting

34 social justice” and deplores the paucity of geographical research on Human Rights.

She affirms that “geographers tended to stop short of engaging directly with human rights and how they function both discursively and materially” (Laliberté

2015, 57).

With the different conceptions of responsibility and Human Rights in mind, the interviewees’ divergent conceptions of how best to protect and promote

Human Rights is understandable. For this reason, the thesis avoided labelling the interviewees as activist and kept to the distinction of their official working label as lawyers with extraordinary rendition prisoners as clients versus other professional investigators.

This thesis does not conceptualise responsibility for someone but rather as ethical responsibility to increase one’s own capacities. Responsibility is re- formulated as a varying capacity that has to be cultivated on both the individual as well as on the structural, collective level. It is a continuously evolving effect of human and non-human beings, rather than based on pre-given moral standards.

This re-formulation has the advantage of avoiding the distinction and implicit assumption of an active giver and a passive receiver that both Noxolo, Raghuram, and Madge (2011) and Laliberté (2015) problematise. To re-formulate responsibility as varying effect I draw upon a Deleuzian reading of Spinoza (1994) and Simondon (2009b). It is significant to note that conceptualising responsibility as a varying capacity resulting from the individual’s internal disposition and the external collective, does not deny individuals’ responsibility.

This thesis elaborates an approach that emphasises the minute and multiple affections through everyday practices before their categorisation as this or that

35 affection. That is, it draws attention to the intensities of actors’ experiences (Hynes and Sharpe 2015). This allows conceptualising the multiple affections the actors involved experience, which go beyond the perpetrators’ efforts at manipulation.

The following quote hints at the importance of the actors’ affection beyond reason:

“Mr. Trump, who vowed during the campaign to bring back waterboarding and a

‘hell of a lot worse’ — not only because ‘torture works,’ but because even ‘if it doesn’t work, they deserve it anyway’” (Savage, 2017, no pagination). This quote indicates that there is more than rationality, knowledge, and intentions involved in extraordinary rendition. The advantage of my approach demonstrates that the milieu constantly affects human beings, their capacities, and judicial proceedings, but that they only potentially change (Mussawir 2010a; Simondon 2009b; Smith

2007). As mentioned, my thesis draws on Deleuze’s (1978a) non-representational philosophy, on Spinoza’s (1994) concept of affect and affection, and on Simondon’s

(2009b) concept of individuation to unsettle and re-formulate the conception of human beings, their capacities, and also the practice of judicial proceedings. This approach emphasises that places’ territorial affiliations and human beings’ affiliations to a subject status is performed through the decisions and actions of multiple actors. That is, places are not simply turned into spaces of law suspension nor are prisoners stripped of all rights.

A first merit of foregrounding the viscerality of extraordinary rendition is to provide insights with regard to how the practice affects the actors involved. For this, my thesis re-formulates human beings as composites of mental ideas and subbodies, in which the affections of the mind and those of the body parallel each other (Spinoza 1994). This conception implies that affections go beyond the

36 traditional five senses (Spinoza 1994; Swirski 2013). There is no simple inside and outside, rather capacities are the effect of interior and exterior forces. Beings are intertwined in that their ‘outer’ relations change the entities themselves (Allen

2012). Most importantly, this re-formulation affects the conception of bodily and mental capacities. Affections constitute the capacity to feel, think, and act (Deleuze

1978a; Sharp 2007, 2011). Consequently, agency, that is, free will and freedom of action, is embedded within cause-and-effect relations (Sharp 2007, 2011).

These re-formulations of human beings and their capacities provide three major insights into how the practice of extraordinary rendition operates, which I outline in Chapter 5 by means of the data collected through archival work and in- depth interviews with Human Rights lawyers and investigators. Firstly, it allows an analysis of how perpetrators disorient their prisoners by means of designing the milieu and by directly affecting their bodies. My analysis demonstrates that prisoners are affected well before and beyond the interrogation rooms. As pointed out above with El-Masri’s description of his transfer, prisoners experience a rich variety of affections in both body and mind. This thesis demonstrates the surprising ways in which prisoners respond to their treatment. Secondly, my analysis underscores that while human beings are manipulated, these manipulations are never fully controllable, because experience always involves affections that exceed the actors’ intentions and because the affections depend upon individuals’ dispositions. That is, prisoners are not simply re-formed into interrogation-torture responsive subjects without resistance. On the same note, this implies that perpetrators concurrently experience pressure towards and against abusing prisoners as the two introductory quotes show. The thesis

37 therefore concludes that perpetrators are not without agency and thus not without responsibility. Thirdly, my thesis sets out that there are no neutral actors; they affect the practice and at the same time are affected by it.

The second merit of a visceral evaluation of extraordinary rendition is to draw out that the day-to-day operations of extraordinary rendition affect judicial proceedings in terms of the judicial structure and litigation processes. My approach re-formulates the judicial proceedings in order to demonstrate their complex composition and creativity. Lefebvre (2008) points out that, contrary to the conventional depictions of judicial judgement (hereafter simply judgement), cases are not subsumed under general and pre-given legal categories. He (2008) specifies that judges do not apply the laws without changing them. My thesis thus re-formulates the conception of the judicial structures and the legal categories it is based upon. It highlights that structures are far from fixing and positing what is legal or illegal (Lefebvre, 2008; Mussawir, 2010b, 2011). While scholars have pointed out that spaces of law indistinction and right-less subjects are produced

(Elden 2009; Gregory 2006; Minca 2006), I emphasise their continuous enactment.

Judicial structures contribute to performing the place of offence as a territory, the perpetrators as responsible subjects, and an act as a transgression of the law

(Blomley, 2003; Hubbard, 2013; Lefebvre, 2006). Laws are not simply applied to judicial cases and rights to human beings; in each litigation their applicability and content is situational and invoked anew (Lefebvre, 2006, 2008; Mussawir, 2010b).

This re-formulation of judicial proceedings demonstrates the creativity of judicial proceedings and the importance of the capacity to evaluate. In Chapter 6, I firstly explore the massive amount of labour by diverse actors involved in constituting a

38 judicial case that my interviewees document. Preparing a case involves specifying the parameters before starting litigation, whereby extraordinary rendition’s transfers proliferate the spaces of law and so diffuse and fragment the practice’s operations and thus responsibility across different states, organisations, and individuals. Secondly, my thesis shows that the determinations of the legal categories are not straightforward nor are they simple subsumptions. Thirdly, my thesis demonstrates that the actors’ affections, decisions, and actions suffuse judicial proceedings. The various actors’ bodily and mental affections during the practice as well as for judicial proceedings matter.

My thesis concludes that a responsible subject has to be cultivated through changes in habits as well as in social structures. It argues that a human beings’ capacity for transformation is what opens up the possibility of change. The aim of this thesis is to promote the idea that responsibility is a fluctuating capacity. It does not, however, prescribe how best to cultivate human beings’ capacities to evaluate and thus to be responsible. Instead, it argues that fostering habits of evaluating and social structures enhancing the capacity to evaluate is crucial in order to prevent ethically dubious practices.

1.5 Thesis Outline

In the next chapter, I expand upon the previous research on extraordinary rendition and the dominant characterisation of it as a practice that sets prisoners and perpetrators beyond the reach of law. In Section 2.1, I outline previous legal and geographical research, which posits that perpetrators and prisoners are

‘beyond the reach of law’ in terms of territorial, personal and universal

39 jurisdictions, a notion which I then problematise in Section 2.2. In Section 2.3, I indicate the complex constitution of spaces of law, based on territory, subject status and legal order. I then expand on why this thesis rejects the idea of exception, emphasising instead the multiple and minute affections the actors involved experience. I underscore the problematic conception of the human subject in conventional approaches and the chapter ends with a sketch of the approach that I develop.

Chapter 3 re-formulates human and non-human beings according to a

Deleuzian non-representational ontology. The first Section 3.1 introduces the

Deleuzian ontology, which allows conceptualising effects beyond intentionality and restrictive categories. It draws on Spinoza to re-conceptualise beings as body- mind complexes and it presents Simondon’s concept of individuation as a way of highlighting the continuous affections of beings by their interior and exterior milieu. Section 3.2 re-formulates the non-human being of judicial proceedings and summarises the contribution of geographers in problematising the aspects of territory, subject status and legal order, before re-formulating judicial proceedings as a complex and fragile institutionalised system of evaluations, while Section 3.3 sets out the implications this approach has for the conceptualisation of human beings.

Chapter 4 elaborates my non-representational and micropolitical approach to evaluating extraordinary rendition. In Section 4.1, I outline the creativity of judicial proceedings by problematising and re-formulating the categories of territory, subject status, and legal order. Section 4.2 reformulates the human being’s mind, while I conceptualise the capacity to evaluate in Section 4.3. The final

40 Section 4.4 sketches how I collected data by means of case studies and in-depth interviews.

Chapter 5 examines how the practice of extraordinary rendition affects the actors involved. It shows that they are site-specific complexes, experiencing continuous affections. In Section 5.1, I analyse how the prisoners are prepared for interrogation and torture and point out that they cannot but respond to it. Then I point out in Section 5.2 that the practices affect not just the prisoners, but also the perpetrators, lawyers and activists in that they affect each other. In Section 5.3, I argue that perpetrators are affected by what they witness and do and point out the aspect of self-framing. In the last Section 5.4, I tackle the questions of if and how perpetrators can be held responsible.

Chapter 6 draws attention to the creative aspect of judicial proceedings. It shows that judicial proceedings are the result of judicial structures and litigating actors. Section 6.1 depicts the labour involved in preparing a judicial case and in

Section 6.2 I illustrate that determining the content of the categories of territory, subject status, and legal order is creative, rather than a straightforward subsumption, while Section 6.3 demonstrates the importance of the litigating actors in judicial proceedings. In the final Section, 6.4, I highlight the importance of the capacity to evaluate within seemingly pre-given judicial structures.

Chapter 7 concludes by underscoring the fragile composition of the capacity to evaluate and its relevance for responsibility. The chapter summarises how a focus on beings’ capacitations opens up spaces of intervention by emphasising the importance of cultivating both the social structures enhancing individual

41 responsibility and the individual being’s habit of evaluating, in order not to be trapped within the ‘banality of evil’.

42 Chapter 2

From Moral and Legal Issues to a Micropolitical Evaluation

This chapter traces the traditional legal and geographical approaches to extraordinary rendition, which are characterised by problematising the reach of law and the prisoners’ rights. Legal scholars analyse the US government’s attempts to put prisoners beyond the reach of law, and consequently attempt to re-situate extraordinary rendition’s sub-practices within spaces of law. In contrast, geographers examine the practice using Giorgio Agamben’s theory of the space of exception. In the first Section 2.1, I summarise the conventional approaches to extraordinary rendition, drawing out their contributions and highlighting the complexity of the practice. I then problematise the idea of putting prisoners outside the reach of law and draw out the complexity and issues of affirming territorial, personal, and universal jurisdiction in Section 2.2. Section 2.3 eludes to the creativity within judicial proceedings and within human beings per se, which an intensive approach emphasises. The final section, Section 2.4, summarises the

Deleuzian, non-representational and micropolitical approach I develop in Chapter

4 in order to potentialise spaces of interventions in extraordinary rendition.

2.1 Previous Analyses of Extraordinary Rendition

Contemporary scholars of extraordinary rendition tend to situate the phenomenon as an attempt to expand the power of the executive branch of government (D’Arcus 2014; Gregory 2006; Satterthwaite and Fisher 2006;

Weissbrodt and Bergquist 2006). In this respect, the legal memos issued by the US

43 government and their implementations are regarded as historically significant efforts to legalise a practice that had previously been met with both legal and moral censure. Notably, the Military Order of 13 November 2001 gave the US

President the right to detain non-US citizens anywhere and indefinitely if they were suspected to be involved in anti-US activities (Agnew 2005). The USA Patriot

Act provided a more permanent basis to the President’s power (Elden 2007, 2009), while the Office of Legal Counsel’s (OLC) attempts to legalise novel interrogation techniques also aimed to increase presidential and executive power in general

(Singh 2013).

The dominant interpretation of extraordinary rendition focuses on the US government’s attempts to set the practice outside of the reach of domestic and international laws and treaties. It is certainly significant that the US government claimed that US courts had no jurisdiction to judge extraordinary rendition cases, through re-interpreting extraordinary rendition’s place of offence, the prisoners’ subject status, and the object of offence. According to one lawyer at the State

Department, the goal was to “find the legal equivalent of outer space”, a “lawless universe”, in order to boost Guantánamo Bay “into orbit as the first legal black hole” (Stafford Smith 2007a, 243). From the point of view of international legal literature, Guantánamo Bay has thus represented a severance from the legal order, isolated from routine legality (Johns 2005). It became a place supposedly beyond the rule of law, a zone of law suspension and right-less people (D’Arcus 2014;

Gregory 2006). D’Arcus (2014, 91–92) concisely summarises this approach to extraordinary rendition, which he describes as:

44 a way to suspend law for certain classes of subjects by

moving their bodies across territorial boundaries. By using

such tactics, the Bush Administration territorially barred

these suspects from access to domestic legal rights. By

effecting such movement covertly, the Bush Administration

also denied them access to the protections of international

law. The active subject moving these bodies across this

global jurisdictional chessboard is a shadow state; ideally

completely invisible. The transfer, then, typically happens

by--[sic]or least in collaboration with–the labor of civilian

subcontractors.

Perhaps not surprisingly, a number of scholars have been critical of governments’ claims regarding the creation of a law free space. They debate the applicability and comprehensiveness of national and international legal orders.

NGOs1 and legal scholars have debated the legal status of extraordinary rendition and concluded that the US government wilfully misreads laws and treaties

(Satterthwaite 2007) or that they are written imprecisely (Weissbrodt and

Bergquist 2006). The question of the intentions of the government have in this way been brought to the fore. D’Arcus (2014) explains that the uneven spatiality of

1 Amongst others, I found the American Civil Liberties Union (ACLU), Amnesty International (AI), the Centre for Constitutional Rights (CCR), the Center for Human Rights and Global Justice (CHRGJ), Human Rights First (HRF), Human Rights Watch (HRW), the Rendition Project, and Reprieve to be rich sources of information.

45 sovereignty has been strategically exploited, so as to strip legal subjects of their rights. He suggests that the Bush administration sought to identify those interstitial spaces in which the jurisdiction of both national and international law was minimal, based on an imagined geometric set of interlocking legal-geographic spaces. Simultaneously, the Bush administration sought to transform the existing spaces of sovereign jurisdiction to limit right claims to a narrower range of subjects.

Throughout the critical literature on extraordinary rendition, three aspects of the practice are delineated, which I will detail below; the US governement’s attempts to restrict the domestic and international courts’ jurisdiction through cross-jurisdictional transfers, re-defining interrogation-torture techniques and by means of indefinite detention.

A first characteristic of extraordinary rendition is the transfer across jurisdictions without due legal processing. These transfers constitute the defining characteristic I use to delimit extraordinary rendition cases from other similar practices. While transfers are analysed in terms of legal infringements I aim to highlight their wide-ranging effects on prisoners and otherwise involved actors.

Legal scholars explain that these transfers infringe upon non-refoulement obligations, which prohibit transfers of an individual if he or she is ‘more likely than not’ to suffer inhumane, degrading treatment, or torture (Satterthwaite and

Fisher 2006). The difficulty legal scholars and NGOs encounter is that the various laws and treaties include different degrees of implicit to explicit non-refoulement clauses. The Torture by Proxy report (ABCNY and CHRGJ 2004) is concerned with the small phrase, ‘more likely than not’ to be tortured, which, it argues, gives

46 latitude of decision to states. Apart from manipulating the content of the law, its applicability in terms of territorial reach is a matter of debate. David Weissbrodt and Amy Bergquist (2006) affirm that the non-refoulement agreements do not apply for prisoners held outside US territory, which brings us to the issue of torture.

The second characteristic of extraordinary rendition is the practice of torture, which raises the predominant moral and legal issue that scholars and

NGOs deplore. Legal scholars are concerned with the distinction between torture and other forms of abuse. While I concur with such scholars’ assessments of the legal and moral issues of torture, a major concern of the thesis is to highlight those negative experiences of prisoners that fall short of being categorised as torture or even as abuse. The issues lays with categories, insofar as categorising is not a straightforward process and may fail to account for the diverse repercussions that so-called lesser abuse has on both prisoners and perpetrators. An important legal and moral issue, which legal scholars encounter, then, is the definition of torture.

Torture is recognised as illegal, however, its definition and the definitions of the various forms of abuses are far from unanimous (ABCNY and CHRGJ 2004; Parry

2005). The Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT) defines torture as an action that must be intentional, perpetrated by a state agent, with the aim of gaining information or a confession and which cause severe pain or suffering to either body or mind (UN

Human Rights 2014). One legal scholar, John Parry (2005), stresses that the right not to be tortured is conceptualised as non-derogable, which is to say that there can be no exceptions to it. The CAT does not define ill-treatment and so leaves

47 latitude to states (Addicott 2006; Parry 2005). Margaret Satterthwaite and

Angelina Fisher (2006) argue that internationally, the CAT as well as the

International Covenant on Civil and Political Rights (ICCPR), prohibit torture, cruel, inhuman and degrading treatment. The Torture by Proxy report (ABCNY and

CHRGJ 2004) argues that existing regulations in the US, the congress’ expressed intent to uphold the obligations against torture, and the White House’s policy condemning torture make extraordinary rendition illegal under US domestic law.

The report stresses that the US government itself is liable under the doctrine of state responsibility, with which the participants could be charged under US criminal and civil statute for conspiracy and complicity in torture (ABCNY and

CHRGJ 2004; see also Weissbrodt and Bergquist 2006). As Weissbrodt and

Bergquist (2006) point out, however, between October 2001 and October 2004, torture committed in a military mission overseas was not regulated by the torture statute, because of the Military Extraterritorial Jurisdiction Act. They also stress that the distinction between torture and ill-treatment implies that the latter is not illegal as such. The distinctions between forms of abuse clearly have implications for judicial proceedings. This distinction implies that transfers of prisoners to states where ‘only’ lesser violence can be expected are not forbidden, per se (Parry

2005). The problem, then, as Parry (2005) points out, is that torture follows an escalation principle.

This issue of categorising torture techniques in contrast to other abuse techniques is most notable in the debates around the enhanced interrogation techniques (EITs). Interrogation techniques are highly regulated and embedded in bureaucratic structures (Parry 2005) and the EITs are no exceptions to this. The

48 CIA torture memo (OLC 2004) outlines these interrogation techniques and distinguishes between three level of exercised violence. The memo (OLC 2004) posits the techniques’ legality, whereas scholars and NGOs assert their illegality.

While the distinction between the forms of abuse is obviously legally significant, I suggest that the categorisation of practices as torture, other forms of abuses, or humane treatment obfuscates the wide-ranging effects of these very visceral practices, effects that my participants frequently detailed in in-depth interviews. In light of this more qualitative sense of harm and with an eye to challenging the overly simplistic categorisation of abuses, I henceforth use the term interrogation- torture to signal the continuum of practices in interrogation techniques from so- called humane and coercive methods, up to torture.

Indefinite detention is the third characteristic commonly used to define extraordinary rendition. In extraordinary rendition, prisoners are not brought before court and are not charged, or if they are, they are only charged after their capture (Weissbrodt and Bergquist 2006). Most of Guantánamo Bay’s prisoners were only released after years of detention and without ever having been charged

(HRF 2017). Detention practices have commonly been analysed with regard to their moral and legal issues, as I summarise here, however, I suggest that these practices have far more effects on the human beings involved. Indefinite detention without charge renders it impossible to judicially challenge the detention, which, in turn leads to prolonged periods of detention without charge (CHRGJ 2008). This exclusion from judicial proceedings results in the direct removal from protection through the law and increases the likelihood of abuse and arbitrariness (Galella and Espósito 2012). Indefinite detention in terms of security detention is

49 prohibited under Article 5 of the European Court of Human Rights (ECHR)

(Vervaele 2013) and the Geneva Convention forbids secret detention sites (ECHR

2013; Sadat 2005). Yet, John Vervaele (2013) points out that security detention in itself is not prohibited under the Inter-American Court of Human Rights (IACtHR), but that any kind of detention has to be supervised without delay by the judiciary.

The significance and yet impossibility of a final categorisation of detention practices has thus become highly significant and it took the Rasul vs. Bush ruling in

2004 to eventually establish that foreigners captured abroad could appeal for justice in US federal courts (Satterthwaite and Fisher 2006; Weissbrodt and

Bergquist 2006).

Secrecy constitutes a major difficulty in researching extraordinary rendition and asserting responsibility. Secrecy keeps prisoners outside the judicial system

(Satterthwaite 2007) and prevents judicial processing (Clarke 2012). Galella and

Espósito (2012) stress that extraordinary rendition and its detention sites are suffused by secrecy, informality, and denial. The Human Rights lawyers and investigators I interviewed point to the massive obstacle that secrecy constitutes for their work (Interviewee I 2016). NGOs, journalists2, lawyers, and scholars describe practices of non-disclosing information, geographical distancing, outsourcing, unacknowledged detaining, and indefinite detaining (Lobel 2008;

Stafford Smith, Wizner, and et al 2010). The non-disclosure strategy has been extensively used during judicial proceedings (LaHood 2005), during which the US government argues that secrecy is necessary in order to protect the US and to

2 Jane Mayer (2007, 2008), Seymour Hersh (2004), and Dana Priest and Barton Gellman (2002) prominently reported on extraordinary rendition.

50 uphold foreign relations (Emmerson 2013). Accordingly, research concentrates on the aspect of secrecy to avoid legal prohibitions and accountability (Weaver and

Pallitto 2010).

One major strategy of secrecy is to hide detention sites, which has the effect of concealing the practice of extraordinary rendition from the public. Black sites are a specific kind of secret detention site (or area), which are run by the CIA.

Thereby, the whole facility can be secret or at least parts of it can. The existence of black sites has been reported in Afghanistan, Syria, Romania, Morocco, Poland, and

Thailand (Marty 2006; Singh 2013). Less often, but also regularly cited, are secret sites on Diego Garcia (UK territory) (Marty 2007; Sidaway 2010), in Lithuania

(Singh 2013) and in Iraq (Mayer 2008). At least one secret site is thought to exist in Guantánamo Bay’s prison complex (Gitmo) in Cuba (Hickman 2015; ICRC 2007;

Interviewee A 2014) and another one is suspected within the Iraqi prison, Abu

Ghraib (Mayer 2008). Gitmo is the most known place to which prisoners of extraordinary rendition have been transferred, although Gitmo may or may not be deemed part of the extraordinary rendition network, depending on the definition used. In any case, Gitmo is currently holding several undisputed extraordinary rendition prisoners — amongst others, Abu Zubaydah3 and Abd al-Rahim al-

3 Zubaydah’s (also known as Zayn al-Abidin Muhammad Husayn) is a stateless Palestinian born in 1971 (ECHR 2015b; Rendition Research Team n.d.; Singh 2013). In March 2002 he was captured in his house in Pakistan (Rendition Research Team n.d.). After detentions at least in Thailand, Poland, Lithuania, Morocco, Pakistan, and Afghanistan, he remains in detention in Gitmo and is not facing any charges (Rendition Research Team n.d.). The enhanced interrogation techniques were developed on him (Rendition Research Team n.d.).

51 Nashiri4. Prisoners have also been held on the US mainland, in the Naval

Consolidated Brig in Charleston, North Carolina (ABCNY and CHRGJ 2004).

Another kind of detention site is mobile sites, such as aeroplanes (Galella and

Espósito 2012) and US naval ships (ABCNY and CHRGJ 2004; Galella and Espósito

2012). David Hicks5 was detained on a US naval ship (Hicks 2010). These mobile sites elude to the aforementioned issue of categorisation, in that the distinction between detention and transition sites is problematic since transferring individuals between detention sites is a common feature of extraordinary rendition (O’Neill 2012).

Hiding prisoners is another major strategy to ensure secrecy: the so-called ghost detainees are held without acknowledgement and cannot contact lawyers, family members, governments or NGOs (Galella and Espósito 2012). President

Bush himself stated that individuals were kept outside regular judicial proceedings for interrogation (CHRGJ 2008). He claimed this was necessary, because once they were acknowledged, the International Committee of the Red Cross (ICRC) could access them (CHRGJ 2008). Galella and Espósito (2012) argue that this lack of

4 Al-Nashiri is a Saudi Arabian citizen who was captured in October 2002 and he was, detained at least in the Emirates, Thailand, Poland, Morocco, Romania, Afghanistan, and Guantánamo Bay, and possibly in Lithuania (ECHR 2011a). He experienced severe abuses while in secret detention and remains in detention in Gitmo (ECHR 2011a). He is currently being charged under the Military Commission for his alleged role in the attacks on the USS Cole (in 2000) and on the (French) civilian oil tanker MV Limburg in 2002 (ECHR 2011a). 5 Hicks is an Australian citizen, who was abducted in Afghanistan in 2001 (The Justice Campaign 2014a). He was one of the first prisoners to be brought to Gitmo and was only released to Australia in May 2007 (Hicks 2010). Because of the plea bargain he signed, he had to serve another seven months in detention in Australia, until he was eventually freed in December 2007 (Hicks 2010). In February 2015 Hicks’ ‘conviction’ was eventually vacated (The Justice Campaign 2014a).

52 acknowledgement and record of detention constitute practices of forced disappearance. Understanding extraordinary rendition to include the aspects of torture and enforced disappearance has legal significance in that it affects the international responsibility of states (Galella and Espósito 2012).

Many legal studies have been concerned with the fragmentation of responsibility and accountability through the multiplication of detention sites and perpetrators. Besides trying to re-define the legal categories of torture and ill- treatment or the prisoners’ rights, the US government uses strategies of fragmentation to offset territorial and personal jurisdiction. With this in mind, the

Obama administration’s increased reliance on foreign intelligence services and thus increased involvement of other states, is certainly significant (Neil 2013;

Weissman 2010). Satterthwaite and Fisher (2006) suggest that territorial and personal jurisdiction are essential tools for claiming jurisdiction in extraordinary rendition cases (see also Satterthwaite 2007). Territorial jurisdiction, the

‘territorial rule’ concerns the question of where (that is, on which state’s territory), extraordinary rendition took place (Satterthwaite and Fisher 2006). It posits that state territory encompasses all territories in which the state exercises formal control or territories that are under its effective control (Satterthwaite and Fisher

2006). Personal jurisdiction, the ‘rule of jurisdiction’ regards the question of which state was in effective control (Satterthwaite and Fisher 2006). The aspect of ‘under the state’s jurisdiction’ is understood to apply to all individuals who are abducted or arrested by state agents (Satterthwaite and Fisher 2006). Satterthwaite and

Fisher (2006) conclude that the two principles together cover all extraordinary

53 rendition cases. Yet, these studies leave the question open of why so little responsibility is associated with such practices.

Techniques of involving foreign states and other state agencies are deemed crucial for avoiding responsibility. Together, they lead to poor information exchange, misinformation, lack of oversight and result in the possibility of deferring responsibility (CHRGJ 2008). Co-operation and cross-border operations increase the difficulty of gathering evidence (Vervaele 2013) and have the effect that people taking key-decisions are inadequately informed about ongoing operations, as Weissman (2010) asserts. The amalgam of private and public funding of prisons limits the rights of prisoners (Garces 2014). Importantly, states’ co-operation gives the foreign state the possibility to act without infringing the territorial sovereignty of other states (Galella and Espósito 2012). In this regard, then, segregations obfuscate transparency and create zones of “legal silence”

(Garces 2014, 19) that neutralise rights and protections of prisoners. Outsourcing parts of extraordinary rendition has allowed the US government to claim to be innocent with regard to torture allegations (LaHood 2005). Former Gitmo guard

Joseph Hickman (2015) argues that specialised contractors, costing on average three times as much as their governmental counterparts, were used to add another level of ‘deniability’. These private contractors operate outside military law. This, then, constitutes one reason for the strong presence of private contractors (up to

50%) in Gitmo (Hickman 2015). Another strategy is to defer responsibility to lower levels. Following the scandal around the images of Abu Ghraib, a few low- ranking soldiers were singled out as black sheep and held accountable (Mayer

2008).

54 The transfers of prisoners are a major tool to involve various US agencies, foreign officials, countries and private contractors. While bounties or aid money are important financial incentives (Bowker and Kaye 2007; Stafford Smith 2007a)

— the US military dropped leaflets promising bounties for prisoners in

Afghanistan6 — many countries participated in extraordinary rendition for their own reasons as well (Khan 2008). Mahvish Khan7 (2008, 253), a lawyer and translator in Gitmo, (2008) expand upon this aspect affirming that “[f]ew

Americans know that Pakistan has manipulated the United States into taking care of members of the Pakistani opposition who have nothing to do with Osama bin

Laden or the so-called war on terror”. She recalls a discussion with a former prisoner saying: “‘My real enemy was some dishonourable lying Afghan who probably sold me to the Americans.’ Abdul Wahid joined in” (Khan 2008, 253).

The multiplication of perpetrators involves an increased amount of paperwork and cost researchers and investigators time and effort (Paglen and

Thompson 2006). It implies an increased work of cross-referencing information for judicial proceedings. In this respect, scholars have noted the importance of the involvement of other agencies, such as the military (ABCNY and CHRGJ 2004), US elite forces (ABCNY and CHRGJ 2004), immigration officials (LaHood 2005; Lobel

2008), contractors (ABCNY and CHRGJ 2004), and the Department of Defense

(Satterthwaite and Fisher 2006; Vervaele 2013). There is a fragmentation within

6 The rewards’ amount varied between US$3,000 and US$25,000 (Bowker and Kaye 2007; Stafford Smith 2007a) per prisoner. This is a major incentive when considering that the per capita income in Afghanistan is US$300 (Khan 2008). 7 Khan worked as a Pashtu translator for habeas lawyers and later as a lawyer for Gitmo prisoners (Khan 2008).

55 agencies as well, as Trevor Paglen and Adam Thompson (2006) highlight. They outline not only which front companies provided the CIA with the required infrastructure for flight transfers, but also how these companies emerged, evolved, disappeared and fused into one another. Owning a plane, organising a flight and flying are different activities, for which different actors are responsible (Blecher

2007; Paglen and Thompson 2006). Paglen and Thompson (2006, 174) conclude that “[t]he change in ownership is perhaps a dizzying distraction, but it is emblematic of the way the rendition program has been formalized”.

Legal studies, then, draw out the importance of the perpetrators’ multiple affiliations and the prisoners’ alleged affiliations to terrorist organisations. The confusion about the nationality and affiliations of the perpetrators increases the complexity of allocating responsibility (LaHood 2005; Weissman 2010). An illustrative example for the instrumentalisation of perpetrators’ affiliations across and within states is the interrogation technique called ‘false flag’. In false flag the interrogator pretends to be affiliated to another state or another US agency, such as Department of Defense officials incorporating FBI or Department of State agents

(DoA 2005). At the same time, the prisoners’ nationalities and alleged affiliations to terrorist organisations are important. The US government attempts to re-define the subject status of the prisoners, because different subject statuses are allocated different rights. The debates are centred around the distinction between civilian and military persons, the concept of citizenship, and the production of right-less people. For example, LaHood (2005) explains that non-US citizens have no constitutional rights in the US. Labelling prisoners as enemy combatants rather

56 than prisoners of war in an attempt to deny them protection under the Geneva

Convention, is another example (Vervaele 2013).

Legal studies also highlight that territorial fragmentation (in terms of involving many states) brings extraordinary rendition ‘out of sight’, while introducing legal complications (ABCNY and CHRGJ 2004; Marty 2006; Singh

2013). The US extraordinary rendition programme relies upon the support of foreign countries, which is concisely documented in two reports: Marty’s (2006) report investigated the involvement of European Union member states, while

Singh’s (2013) report outlines more broadly the scope and intensities of the involvement of 54 nation states besides the US. Singh details and lists examples of participation, ranging from pro-active help to turning a blind eye. With regard to the transfers, forms of support include the provision of airspaces (Singh 2013), of airports (ABCNY and CHRGJ 2004; Singh 2013), of refuelling facilities (Clarke

2012; Singh 2013) and the transfers of prisoners (Singh 2013). Two forms of support are described with regard to interrogation-torture practices: practicing interrogation-torture on behalf of the US (Priest and Gellman 2002; Singh 2013) and providing information for capture and interrogation of prisoners (Singh 2013).

Amongst others, Canada (CCR 2010; Scheinin et al. 2010; Toope 2005), Germany

(Singh 2013) and the UK (Lord Justice Thomas 2008; Marty 2006; Singh 2013) provided intelligence. With regard to detention practices, three forms of support are described: allowing the presence of black sites, abducting and detaining prisoners (Marty 2006; Singh 2013). Finally, there is “quiet support” (Cole 2013, 7) in the form of hindering investigations and conducting non-effective investigations

(Marty 2006; Singh 2013). The support is provided by means of non-disclosing

57 (exculpatory) documents (Lord Justice Thomas 2008), not requesting extraditions of CIA agents (BBC News 2007; Vervaele 2013), failing to conduct effective investigations into prisoners’ allegations (Registrar of the Court 2012), failing to prevent or intervene to protect prisoners (Singh 2013) and failing to apologise

(Cole 2013). Singh (2013) concludes that the practice specifically intends to outsource abusive interrogation to foreign states, so as to remove it from public and judicial scrutiny (see also Parry 2005).

Interestingly, these practices of fragmentation have been detrimental to the

US government’s attempts to promote secrecy. Fragmentations constitute a weak point in hiding extraordinary rendition as they increase the likelihood of leaks, by leaving trails of documents (Paglen and Thompson 2006; Singh 2013). Involving other actors necessitates time to train and instruct them (9/11 Commission 2007).

I would like to stress that the co-ordination and the multiplication of companies leave traces and to emphasise illustratively how small and innocuous facts, such as improperly payed landing fees, result in a thread that reveal much about extraordinary rendition (Paglen and Thompson 2006). In D’Arcus’ (2014, 92) words, the subcontractors and front companies necessarily leave traces, because they “work through the networks of the formal economy and civil society.”

A last merit of legal studies scholarship on extraordinary rendition that I wish to draw attention to is the depiction of the plurality of legal orders and debates about the legal object of offence. In assessing the legal status of the sub- practices of extraordinary rendition, scholars describe the US government’s attempts to re-define the law’s reach. An example for the issues of defining the offence, and the legal order it implies, are attempts by the US government to re-

58 define torture and ill-treatment to offset non-refoulement obligations. Jeffrey

Addicott (2006) explains that the risk assessment ‘to be tortured’ is subjective, while Jane Mayer (2008) affirms that the US government intentionally failed to provide requested legal guidance to field officers, repeatedly, in order to create confusion about the legal status of different practices.

2.1.1 The Idea of Exception

The attacks and averted attacks in London, Germany, Brussels and Paris in the recent past (AFP/Reuters, 2015; Dearden; “London attack,” n.d.; Security

Service MI5, n.d.) have re-catapulted the metanarrative of a ‘state of emergency’ or

‘state of exception’ to the fore: in the UK, Canada, Australia, New Zealand and

France, for example, discussions, debates, and implementations of anti-terrorism laws, freedom restrictions and passport or citizenship cancelations are increasingly governing state politics (ABC News 2015). According to Agamben, the exception or emergency becomes the rule insofar as the distinction between peace and war becomes impossible in the war on terror (Johns 2005). Scholars claim that the idea of the state of exception provides a useful analytical tool in a time of increasing militarisation of western societies (Agamben 2002, 2005; Diken and

Laustsen 2006b; Gregory 2011; Minca 2006); or that it is a prominent political tool

(Gregory 2006; Vaughan-Williams 2008). Ben Anderson and Peter Adey (2012), on the other hand, reject the claim of a global state of exception, yet affirm that we live in a state of preparedness. They argue that emergency is a tool to govern life and that while the concepts of state of exception and of emergency are not identical, they both denote a shift in power in favour of the executive branch.

59 Many scholars warn against and deplore a normalisation of the exception.

For example, legal studies treat torture as exceptional in that it is a measure applied in exceptional situations, when there is an exceptional necessity and it is often linked to a state of exception or emergency (Parry 2005). Dershowity, a prominent (media) lawyer, and Gonzalez, former Attorney General and White

House Counsel, tried to justify torture in specific and extreme cases (Gutierrez

2006). Their argument is, as then Secretary of State Condoleezza Rice wrongly claimed in 2005, that intelligence gathered with the enhanced interrogation techniques had stopped terrorist attacks and saved lives (Brinkley 2005).

In geographical research, this notion of the exception has been deployed to understand the way that the logic of national security is used to extend and protect the power of the US state (Conlon and Hiemstra 2014). Borders are not enforced only at the peripheries of state territories, but increasingly within it (Mountz et al.

2012). Novel (bio)technologies are understood to create novel vulnerabilities and an increasing blur between military and civilian space (Nisa 2015). Geographers underscore the proliferation of sites of border enforcement (Conlon and Hiemstra

2014). Carceral geographers are concerned about the expansion of the carceral regime and the growing phenomenon of mass incarceration (Conlon and Hiemstra

2014; Story 2014). They detail the interdependence of detention practices and society and argue that the prison space has to be re-socialised as a co-constitution with other spaces (Conlon and Hiemstra 2014; Mitchelson 2014; Mountz and Loyd

2014). Carceral geography highlights that no prison is spatially autonomous from its geographic setting (Conlon and Hiemstra 2014; Mountz and Loyd 2014) and so

60 it consistently challenges the inside versus outside binaries of total institutions

(Mitchelson 2014).

Given the influence that Agamben’s ideas have had on geographical analyses of the spatiality of Gitmo and the rightlessness of prisoners more broadly,

I will briefly sketch Agamben’s theory of the space of exception. The space of exception describes the suspension of the law without its abolition over a place, that is, while there are laws, the “norm-implementation and norm-compliance cease to govern action and decision-making” (Johns 2005, 619). In the space of exception “the law is applied, but is not formally in force” (Agamben 2005, 36). The space of exception is outside the law and produces “an outside and an inside of the law” (Agamben 2005, 70). It is “a space devoid of law, a zone of anomie in which all legal determinations — and above all the very distinction between public and private — are deactivated” (Agamben 2005, 50). The exception “is essentially an empty space, in which a human action with no relation to law stands before a norm with no relation to life” (Agamben 2005, 86). Gregory (2006) emphasises the temporal and spatial aspect of the exception. He affirms that the sovereign power suspends the rule of law for a certain time and thereby sustains the law’s existence. Thereby, the law is suspended through decisions of the sovereign and for a distinct spatiality, the camp (Johns 2005). In camps, the state of exception has become permanent (Diken and Laustsen 2006a; Elden 2009). Barkan (2011) thus argues that the self-suspending law creates zones of inside and outside, which enable the law to legally withdraw from places and people (Barkan 2011). This is the case because the space of exception does not only refer to a space, but also to the subject status of bare life. Bare life is an undecidable subject status (Vaughan-

61 Williams 2008); the state of exception, then, is defined as a space in which subjects defy codification and are completely delivered to the sovereign discretion (Johns

2005).

Scholars use Agamben’s theory of the space of exception to analyse the allocation and enforcement of rights in the context of extraordinary rendition and

Guantánamo Bay (D’Arcus 2014; Gregory 2006; O’Neill 2012). Agamben (2005) himself asserts that President George Walker Bush attempted to seize sovereign power in an emergency situation. He attempted to “produce a situation in which the emergency becomes the rule, and the very distinction between peace and war

(and between foreign and civil war) becomes impossible” (Agamben 2005, 22).

Gitmo is understood as a space of exception in which the law is suspended in order to make sense of the US government claims variously situating it inside or outside of US territory (Reid-Henry 2007). Gregory (2006) affirms that Gitmo is a zone of indistinction between the legal and extra-legal, and that its geographical ambiguities have to be resolved to clarify which laws apply. To re-affirm Gitmo’s territorial affiliation, scholars trace Guantánamo Bay’s history. They raise questions about sovereignty, the problematic status of leasing Guantánamo Bay, and effective control (Gregory 2006; Reid-Henry 2007; Vaughan-Williams 2008).

The lease agreement declares that the US shall have complete jurisdiction and control within Guantánamo Bay, while the ultimate sovereignty remains with the

Cubans (Reid-Henry 2007). As legal scholar Fleur Johns (2005) exemplifies, access to and navigation around Guantánamo Bay is only possible with US authorisation.

Gitmo has been a major focus of US national and foreign policy due to many national and international requests for closing it down. Although president Barack

62 Obama requested the closing of Gitmo in 2009, it is still in use (HRF 2017). In

(remote) sites of detention, such as Gitmo, the detained people are at once inside and outside sovereign territory (Mountz and Loyd 2014).

Geographers further use Agamben’s concept of bare life to make sense of the lack of the responsibility on behalf of the perpetrators and to conceptualise the lack of rights associated with the practice. Bare life designates the legal status of subjects abandoned by law, and stands in contrast to rights-bearing subjects

(Agamben 2002). Agamben (2002) emphasises bare life as the product of a biopolitical apparatus and is situated in between nature and law; bare life subjects are neither beasts nor human beings and yet belong to both realms (Agamben

2002). The state of exception suspends not just the law, but also the legal subjects’ rights: “he was, rather, radically deprived of any legal status and could therefore be stripped of his belongings and put to death at any moment” (Agamben 2005, 80).

What is suspended is “not simply the juridical order, but […] the very status of the

Roman citizen”, Agamben (2005, 80) continues. Contemporary society has no ideal type of bare life, instead we are all potentially bare life (Agamben 2002). Human beings, then, are abandoned to violence and death, while the perpetrators elude responsibility (Gregory et al. 2009). Bare life is a life that can be subjected to any violence without this constituting a crime (Gregory 2006; O’Neill 2012; Vaughan-

Williams 2008). D’Arcus (2014, 84) concludes that the state of emergency enables the sovereign to “suspend otherwise fundamental legal rights”.

Conventionally, then, prisoners as bare life subjects are understood to be

‘stripped’ of ‘their due rights’ (D’Arcus 2014; Gregory 2006; O’Neill 2012). Gregory

(2006, 414) writes that “legal protection had been visibly withdrawn”. In O’Neill’s

63 (2012) words, prisoners are “stripped of every political status and its protections”

(O’Neill 2012, 467). D’Arcus concludes that the aim in extraordinary rendition is to

“strip legal subjects of their rights” (D’Arcus 2014, 95). Bare life, then, depicts individuals as amenable to sovereign power at will (Vaughan-Williams 2008). It implicitly presupposes a fixed conception of what a human being is and what rights a human being has. While geography scholars elude to the importance of prisoners’ treatment for producing this deplorable subject status (Gregory 2006;

O’Neill 2012; Vaughan-Williams 2008), there is little emphasis on the modulation of this subject status or how prisoners come to be categorised as bare life subjects.

For instance, Gregory (2006) eludes to this aspect of production when he asserts that the boundary between qualified and unqualified life is oscillating and that prisoners are turned into objects, rather than subjects. Vaughan-Williams (2008,

333) similarly assesses that bare life is something “produced by the sovereign machine, a product, rather than something that pre-exists”. Bruce O’Neill (2012) underscores the significance of transfers in the production of bare life. He argues that prisoners undergo torture in one place, which prepares them for torture in another place, thereby dislocating and disorienting them.

A major critique of the state of exception is the spatiality of camps, its re- production of the binary logic of within versus outside territory. Alison Mountz

(2013) points out that much of the recent scholarship reproduces explicitly or implicitly the binary logic of inside versus outside territory. Oliver Belcher, Lauren

Martin, Anna Secor, Stephanie Simon and Tommy Wilson (2008) argue that many scholars have interpreted Agamben’s sovereign ban to create a determinate socio- temporal site of the camp. They suggest that the exception is not a space in itself,

64 but a power technique that creates a zone of indistinction between the inside and outside of law (Belcher et al. 2008). Belcher et al. (2008) emphasise that the state of exception is not spatialised but spatializing; the emphasis is on processes of transformation and emergence. The exception is a non-localisable process of transformation, rather than a pre-formed category and so raises the question of its functioning (Belcher et al. 2008). In a more general matter, geographers call for a de-naturalisation and a re-socialisation of spaces (Blomley, 2003; Elden, 2010b;

Lefebvre, 1991). That is, they emphasise the need to re-think spaces as social products (Blomley, 2003; Elden, 2010b; Lefebvre, 1991). They argue that social practices are not imbedded in pre-existing spaces, but re-articulate spaces

(Lefebvre, 1991).

Johns (2005) points out that the state of exception assumes a dangerous distinction between emergency and normalcy; the state of exception presupposes the existence of a ‘normal’ juridical zone (Johns 2005). She stresses that one should question the insistence on the exception and that focusing on the exception leads to overlooking ‘normal’ violence. Johns (2005) affirms that Gitmo is not free of codes, regulations or norms and argues that rather than invoking changes of norms to fight what is happening at Gitmo, one has to understand the legal working and the political acts within the facility. She concludes that recognising one’s potential of exceptional decision-making enables novel possibilities of decision taking.

The exception is a political tool that is enacted in ordinary practices

(Barkan 2011); it is not as exceptional as the name implies (Barkan 2011; Elden

2009). Barkan (2011) illustrates that the exception is part of the law: the law

65 produces exceptions, not as exceptional measures but as a mundane activity

(Barkan 2011). Exceptions to the law and emergency laws are in no way new, and they are far more complex than usually portrayed (Barkan 2011). Limit cases and exceptions, or exceptional measures, should be seen as continuous, rather than a breach. Similarly, Elden (2009) emphasises the exception as tactical tool.

2.2 Problematising the Idea of Being ‘Beyond Jurisdiction’

Despite the predominant view that laws exist and apply to extraordinary rendition, little responsibility has been attributed. My interest lies in why there is little responsibility and why people engage in such an ethically dubious practice.

As explored in Section 2.1, this issue of what it would mean to be ‘beyond jurisdiction’ has informed the majority of debates in the literature on extraordinary rendition. The scope of jurisdiction and, in particular, the question of the territorial reach of laws constitutes the predominant concern (Fisher 2008;

Lobel 2008; Satterthwaite and Fisher 2006). D’Arcus (2014) argues that extraordinary rendition is a battlefield for the relations between places, subjects’ rights and duties and laws. While the Bush administration fetishised territory,

Human Rights organisations and lawyers weigh the aspect of personal jurisdiction understood as de facto control (D’Arcus 2014). The idea of being ‘beyond the reach of law’ has lead legal scholars to clarify the relations between territory, controlling authority and legal orders (Lobel 2008; Sadat 2005; Vervaele 2013). Researchers have pointed out that the Bush administration tried to put extraordinary rendition outside the reach of law by manipulating the law and claiming ‘law-free’ places or right-less people (D’Arcus 2014).

66 In this section, I highlight the complexity and the issues of the conventional conceptions of the three jurisdictions of territory, perpetrators’ subject status and transgressed legal orders. From this problematisation, it follows that judicial proceedings have to be re-thought, because they are more complex than commonly portrayed. This thesis suggests that there is more than wilful manipulation and the multiplication of territories and perpetrators that enable the functioning of extraordinary rendition. Territory as the place of offences, authority in term of the subject status of perpetrators, legal orders in terms of defining the offence and rights of prisoners, and human beings’ subject status are more multifaceted than conventionally imagined. Most notably, Elden (2009) highlights the complex relationship between sovereignty and territory and problematises the very conception of territory in his writings. Yet, despite an increased sensitivity towards the complexity and the production of territory, subject status, and legal orders judicial proceedings are implicitly portrayed as fixed and straightforward subsumption without creativity (Lefebvre, 2008; Mussawir, 2011). Put in a different way, places are implicitly assumed to have a clearly given territorial affiliation, that there is a single responsible authority, and a given, applicable law.

To depict their complex constitution allows appreciating the processual character of judicial proceedings and its creative potential. To do so, I now problematise the conceptions of territory, subject status and legal orders by highlighting their co- constitution.

67 2.2.1 Problematising Being ‘Beyond Territorial Jurisdiction’

Territorial jurisdiction, the territorial reach of legal orders and the conception of territory are problematic. While Satterthwaite and Fisher (2006) affirm that if the scope of a treaty is not explicitly named it is presumed to encompass the state’s entire territory, they concede that the territorial rule is less clear within states that were previously occupied, or where effective control is exercised with the permission of the sovereign state (see also Satterthwaite 2007).

Satterthwaite and Fisher (2006) also note that the ruling in the judicial case Rasul v Bush (in 2004) does not automatically include extraterritorial prisoners. The congress did not expressively extend the non-refoulement obligations to people that were not held on US territory (Weissbrodt and Bergquist 2006). Weissbrodt and Bergquist (2006) only hint at the importance of territory when discussing habeas statutes. Thus, different international or domestic laws and treaties apply to different places (Satterthwaite 2006; Valverde 2009). Whereas the different demarcations of inside versus outside territory are debated, the concept of territory itself is posited as clear and given (DiMento and Gilbert 2006;

Satterthwaite 2007; Weissbrodt and Bergquist 2006). Geographers problematise the fixed conception of inside versus outside (state) territory that is implicitly pre- supposed (Gregory 2006; Minca 2006; Reid-Henry 2007). Simon Reid-Henry

(2007) explains that the dual conception of inside versus outside is re-enforced by the US government, in order to posit Guantánamo Bay in between domestic and international law. The US government posits Guantánamo Bay outside or within the reach of these legal orders depending on situational conveniences (D’Arcus

2014; Reid-Henry 2007). Paglen and Thompson (2006) hint at the interrelation of

68 within and outside state territory, when they depict the CIA’s front companies and their infrastructural requirements. Despite the debate around defining territories, there is little emphasis on the problematic conception of territory itself and how it is enacted through decisions and actions of various actors in everyday life. While I do not dispute these intentions nor their effects I suggest, following Elden, that the conception of territory is itself is problematic and accounts for difficulties in affirming responsibility. Claims of territorial jurisdiction, then, are less straightforward than conventionally imagined, because places and their territorial affiliations are transforming through multiple actors’ feelings, thoughts and actions.

A related issue is that sovereignty is not evenly distributed over a territory.

The idea of being ‘beyond territorial jurisdiction’ implies a fixed (state) territory with clear boundaries. Vaughan-Williams (2008) is critical of the presumptions that states are territorial and that limits of territories and legal orders are congruent. He argues that these presumptions are inadequate to understand

Guantánamo Bay: “[o]n this reading the limits of territory and the limits in law appear coextensive and yet, as the Guantánamo example illustrates, many practices in contemporary political life call this framing into question” (Vaughan-

Williams 2008, 330). On a similar note, Mountz (2013) explains that there has been a shift towards a more complex, ambiguous conception of the grey zones through which sovereign power operates and is produced. Power is expressed through debates over jurisdiction and control of territories (Mountz 2013). She expands upon this notion, stressing that territories can be very complex, such as in the cases of Guantánamo Bay, military bases in general, prisons and islands

69 (Mountz 2013). Thereby, sovereign power is understood to strategically use

‘ambiguities’:

For Reid-Henry (2007), it takes shape through the ‘gray’

zone that is Guantánamo Bay. Gregory (2006), too,

conceptualizes Guantánamo Bay and Abu Graib [sic] as

zones of geographical, jurisdictional, and legal ambiguity

that are productive in the strategic assertion of sovereign

power (see Butler, 2004; Kaplan, 2005) (Mountz 2013,

834).

Territory is not simply a given, but a complicated and multifaceted a concept as Elden’s (2009, 2013a, 2013c) illustrates. He argues that the concept of territory is little problematised and depicts territory as both a historical concept and a process (Elden 2009). Territory is constituted, amongst others, by economic, strategic, developmental and legal aspects within a historical framework (2005,

2009, 2010a). Firstly, territory is a political-economic question of land, which is a limited resource, and is at the same time the site of struggles and the stake of struggles (Elden 2010a). Secondly, the strategic-military aspect of terrain denotes a relation of power, which emerges from geology and military. The strategies seeking to maximize land possession as a scarce resource are concerned with security, management, and administration (Elden 2010a). Thirdly, the conception of territory requires specific technological development, spatial conceptions and power conceptions. This often overlooked technological aspect permits us to

70 appreciate what scientific, technological, and ontological developments are required and affect notions and uses of spaces (Elden 2010a). For instance, cartography is not neutral but actively produces territory; it “is actively complicit in its production” (Elden 2010a, 809). Instead, maps are differentiating, because they draw boundaries and categorise resources and people; at the same time, maps homogenise the space parcels in that the parcels are dealt with as being homogeneous (Elden 2010a; Gregory 2010). The fourth, legal aspect of territory raises questions about the notions of jurisdiction, authority, sovereignty, administration and their limits (Elden 2013a, 2013b). These four aspects are interdependent characteristics as, for example, the military strategies are dependent on the range of developed techniques (Elden 2010a). Elden (2010a) further eludes to the fact that other features, such as social, cultural and affective features, also affect the conception of territory. These four aspects of territory are crucial to understand the relationship that became established between territory and (legitimate) sovereign power (Elden 2009). Elden (2013a) stresses the importance of understanding territory as a political technology and that it is not a product but a process; it is at the same time shaped and shaping.

In addition, as Elden (2007, 2009) points out, the connection of territory and sovereignty is increasingly recognised as problematic. The relationship between territory and sovereignty is complex and does not necessarily entail complete congruence (Elden 2009). Territory is not homogeneous nor is state power equally distributed over a space: there are centres and peripheries (Elden

2009; Mountz 2013). For example, Alison Mountz, Kate Coddington, Tina Catania and Jenna Loyd (2012, 530) demonstrate that “[t]he mobility of borders becomes

71 affixed to migrants’ bodies”. They argue that detention sites are a rich source of information for geographers with regard to modern state building, reconfiguring sovereignty, endorsements of off- and onshore concepts, and economic development of remote locations. Detention sites encompass paradoxes and purposefully call upon competing models of sovereignty, so as to convey public transparency and accountability, while at the same time acting as authoritarian and sovereign, Mountz et al. (2012) conclude.

Places are increasingly conceptualised as the result of global and local forces and as exercising (global and local) forces. It follows that the geographic location is a shaping force. Alison Mountz and Jenna Loyd (2014) demonstrate that the remoteness and frequent transfers of detained immigrants affect their families and legal advocates (Mountz and Loyd 2014). They explain that the concept of remoteness is discursively constructed in relation to accessibility of advocacy, legal resources (representatives, interpreters, tribunals) and social support (see also Gill 2009). Mountz and Loyd (2014) argue that a geographically distant location is too often reduced to a simplified assumption of isolation, subordination and exploited space. Remoteness, however, also “compounds the unfreedom and harms of detention” (Mountz and Loyd 2014, 389).

Expanding upon this notion, I wish to emphasise that the issue of determining sovereignty is not restricted to the detention site of Guantánamo Bay.

Diego Garcia, for example, has also a role in the war on terror (Mountz 2013;

Sidaway 2010). The struggles of control over islands have led to complex

“jurisdictional arrangements”, “‘sketchy’ behavior of states”, and “partial forms of citizenship” (Mountz 2013, 835–36). Military bases are territories that offer

72 expressions and exceptions of power relations, while the sea is a site of struggle between maritime and international law, commercial trade, military exercises, recreational activities, and conservation efforts (Mountz 2013). Mountz et al.

(2012), on the other hand, emphasise that in international waters the boats are considered to be virtual borders, which illustrate the intrinsic relation between detention and expulsion.

One important feature of scholarship on extraordinary rendition is the focus on hiding detention sites and purposeful complication of territorial affiliations. Extraordinary rendition plays upon the recognition of places by re- appropriating or converting spaces. There is a precedent in Henry Lefebvre’s work

(2003, 98) to conceptualise the symbolic reappropriation of spaces, without altering the material space, as when he speaks of “modifications of the purpose and meaning of buildings”. Weizman (2007) makes a similar point with his concept of conversion. The idea of conversion draws attention to the overlapping of different social practices and how different practices use, re-use and shift the function of specific material structures. Gregory (2006) draws attention to the strategy of converting ‘innocent’ sites into detention and torture sites, in order to complicate their detection. El-Masri’s detention and interrogation in a Macedonian hotel room is an illustrative example for this type of conversion. Another example is the black site Salt Pit, a converted industrial building.

2.2.2 Problematising Being ‘Beyond Personal Jurisdiction’

Jurisdiction over a person is a second form of exercising and yet limiting jurisdiction (Mussawir 2011). As indicated in the last subsection, the very

73 conception of authority in its link to territory is problematic (Agnew 1994; Elden

2009). Research on the relation between territory and sovereignty has drawn out the inadequacy of traditional conceptions of authority (Agnew 2005; Elden 2009).

Agnew (2005) argues that sovereignty is usually understood as inherently territorial and exclusively based on states. He (1994) explains that state territory is too often taken for granted, even though the origin of the modern state is debated and most authors recognise that there is no full sovereignty. Sovereignty denotes an authority that has exclusive control over a territory and is autonomous

(Levy and Sznaider 2006). The increased interest in geopolitics is due to the felt change of the spatiality of sovereignty (Mountz 2013). Agnew (2005) emphasises that the absoluteness and indivisibility of authority, which are implicit in this conception of sovereignty, are in themselves problematic. He (2005) suggest that authority is not a unitary or clear-cut entity and points out that authority has different sources beyond the state (Agnew 2005). State authority has never been complete in that many other non-state actors ‘possess’ authority and thus compete with state authority (Agnew 2005; Levy and Sznaider 2006). The increasing problematisation of sovereignty and authority has led to conceptions of shared sovereignty (Agnew 2005; Elden 2009). The conception of partial sovereignty opens the door for states to act on foreign territories in terms of humanitarian aid and also terrorism allegation (Elden 2009). Agnew (2005) describes different forms of sovereignty such as ‘shared sovereignty’ and introduces the conceptions of divisible or graduate sovereignty. Similarly, Elden (2009, 167) describes the idea of ‘earning sovereignty’, which then leads to different grades of sovereignty, such as “phased sovereignty, conditional sovereignty, and constrained

74 sovereignty”. The prominence of territorial integrity in politics and the idea of weak or failed states provides justification for interventions (Elden 2009). The so- called failed or weak states are countries reproached as incapable of entirely or effectively controlling their territories and illustrate the illusion that a state’s sovereignty correlates with its territory (Elden 2009). Elden (2009) emphasises that the differentiation of weak and strong is not as easy and clear as it might first appear. Put in a different way, the territorial dimensions of sovereign power are no longer taken as a given, but contested in various ways (Levy and Sznaider 2006;

Mountz 2013). Detention practices re-configure territorial sovereignty and connect sovereignty to bodies (Mountz et al. 2012).

A related issue is that authority is understood as stemming from a single entity, which is commonly thought to be a state. Yet, there are a plurality of entities that produce and enforce laws (Agnew 2005; Levy and Sznaider 2006). Clarke

(2012) draws attention to the plurality of ‘states’ by stressing the states’ difficulties in controlling their officials. In addition, the state organisations themselves are constituted by many sub-organisations (Hickman 2015; Soufan

2011). Different front companies operate within the ‘single’ organisation of the

CIA, as Paglen and Thompson (2006) illustrate. There is strong rivalry between the different agencies, which is relevant, because the prison complex Gitmo and

Guantánamo Bay’s Naval Base were run by different agencies (Hickman 2015;

Soufan 2011) and the guards and interrogators had different affiliations (Stafford

Smith 2007a).

Whit this in mind, the conception of a perpetrators’ affiliation to an authority has to be problematised, insofar as authorities are not given and singular

75 but multiple and enacted. The aspect of subject status and its affiliation is important with regard to both perpetrators and prisoners. The affiliation is significant, for being a military official has the effect that military laws apply and that military courts are to enforce the laws (Interviewee B 2014). With regard to the prisoners’ affiliations, it is relevant to note that the Military Commissions

(trials) used in Guantánamo Bay apply explicitly only to prisoners who are not US citizens (LaHood 2005; Stafford Smith 2007a). The plurality of perpetrators’ affiliations ranges across the spheres of public versus private, and domestic versus foreign (Interviewee A 2014). The contemporary distinction of public versus private is further recognised as inadequate. There are actors across the public- private continuum and at different regional, state, and international scales

(Gregory 2011; Mountz et al. 2012). Colin Scott, Fabrizio Cafaggi and Linda Senden

(2011) argue that there is a shift of power and authority from the state to the international level and from the public to the private domain. There is an increasing use of private contractors for immigrant detention, which blurs the divide between private and public spheres (Mountz et al. 2012). Mountz et al.

(2012, 536) affirm that “privatisation is a means of restructuring and expanding the state’s capacities” and suggest that privatisation is a means for detention facilities to insulate themselves and to evade public responsibility (Mountz et al.

2012).

The conception of the human being has a significant impact on extraordinary rendition. The conception of rights-bearing human beings is problematic, as debates around citizenship and Human Rights illustrate; the allocation of a subject status is far from predetermined. These debates focus on the

76 expansion and restriction of the category of human beings as citizens (Levy and

Sznaider 2006; Zevnik 2011). For example, Mountz et al. (2012) show how detention blurs the distinction between inside and outside the state by reifying the distinction between citizens and non-citizens.

I suggest that while there is increased attention and sensitivity to the production of subjects, the conventional conception of human beings still too often implies fixed conceptions of what ‘human beings’, ‘humanity’, and ‘rights’ are, an assumption that this thesis problematises in various ways. For the moment, my concern is to outline the distinction between human beings’ mode of existence and their subject status, which relates to specific rights and duties.

2.2.3 Problematising Being ‘Beyond Universal Jurisdiction’

Determining jurisdiction through the offence implies determining the applicability of a specific legal order and the rights and duties it implies.

Commonly the law is understood to remain unchanged either because “an existing rule is applied or, if a new rule is made, it is said to have tacitly existed all along”

(Lefebvre, 2008, 151). This understanding implies that there is a right way to interpret and apply laws and rights. Conventionally the laws’ application is depicted as a given, which subsumes the lived ordeals to pre-given legal categories

(Fisher 2008; Lobel 2008; Satterthwaite 2006). David Delaney (2001) points out that different rulings can be the result of different interpretations of statutes, but also of different interpretations of concepts, such as nature or wilderness.

Universal jurisdiction is exemplary to illustrate the wide-ranging effects of defining the object of offence: universal jurisdiction is based on the conception of

77 the offence as a crime against humanity (Interviewee A 2014; Levy and Sznaider

2006). Universal jurisdiction considers a specific selection of offences to be ‘crimes against humanity’ (Interviewee A 2014; Levy and Sznaider 2006). This allows any state (though not persons) to demand a litigation in any place (Interviewee A

2014). Yet, what counts as crime against humanity, which would allow claiming universal jurisdiction? Universal jurisdictions relate to Human Rights. Scott et al.

(2011) explain that NGOs, such as Amnesty International, not only address social problems, but raise public concerns about Human Rights, set standards, and monitor other organisations and states. Similarly, Daniel Levy and Natan Sznaider

(2006) emphasise that Human Rights are produced and not universal. The memories of the Nuremberg trials and other memories of Human Rights abuses continuously reaffirm and enforce Human Rights as an important legal and moral reference (Levy and Sznaider 2006). Thereby, as Andreja Zevnik (2011) points out,

Human Rights legitimise Western ideals.

Defining the objects of offence limits analysis to these pre-given and restrictive categories (Mussawir 2010a). Allocating a subject status to prisoners is thus significant in order to define the prisoners’ rights and so their alleged transgression. However, Human Rights are restrictive and pre-given categories

(Lefebvre, 2008). Mussawir (2011, 88) emphasises that what Deleuze’s deplores about Human Rights is that they rest on the conception of these rights as “solemn and weighty”. Human Rights, and rights in general, may also be singularly impractical because of the high levels of abstraction and “inflated codifications of rights” (Mussawir 2011, 76).

78 Zevnik (2011) raises an important and related point when arguing against the givenness of human beings and their rights. She (2011, 165) is concerned with drawing out the problematic conception of a category of ‘the human being’ and explains that “humans are not humans by virtue of their biological characteristics, but by virtue of their citizenship, class, nationality, ethnicity, religion, and so on”.

The law constitutes specific forms of being in the world and precludes others

(Zevnik 2013). Zevnik (2011) draws attention to the fact that the forms of political and legal categories are not pure coincidence or simply abusive. Rather, they are means to set subjects inside or outside the law and to recognise the subjects’ rights and duties, or to deny them. As Zevnik (2011) points out, becoming enemy combatants stripes the detainees from the rights of prisoners of war.

What is important to emphasise here, is that a changed conception of the human being and what rights a human subject has, affects the legal and political sphere, while concurrently, legal orders produce specific subject statuses (Zevnik

2011). In Zevnik’s (2011, 162) words,

That which allows for such abusive practices and the

consequent slackening of norms and legal frameworks is, I

argue, precisely the politics of defining what or who is the

subject of law, and what or who is outside or inside of the

law (Zevnik 2011, 156).

Another example illustrating the importance of intensities beyond legal categorisation is torture. While torture is defined as illegal, its definition and that

79 of ill-treatment and abuse are far from unanimous (Addicott 2006; Parry 2005;

Weissbrodt and Bergquist 2006). The debated question is whether the treatment or interrogation techniques amount to abuse, ill-treatment or torture (CHRGJ,

2008; Rose, 2004). Yet, as depicted earlier in this chapter, the categorisation of methods as torture or ‘lesser’ abuses also depend upon their applications, combinations, prolonged or repeated use (CHRGJ 2008). That is, abuses occur in a range of degrees; there is no single name, definition, nor categorisation for a technique. Parry (2005) emphasises another issue of categorisation torture, namely, that the rationalised and precise definition of torture has a normalising effect. The danger is that the definition implicitly asserts that any non-listed practices do not constitute torture (Addicott 2006; Parry 2005; Weissbrodt and

Bergquist 2006). Parry (2005), then, pleads for a broader legal conception of torture. Yet, other scholars are apprehensive that categorising too many techniques as torture would trivialise the concept of torture itself (Steiger 2007).

The issue of using pre-given categories resides in the discrimination of the prisoners’ experiences, which do not qualify as torture. There is a failure to emphasise that lesser forms of abuse, insofar as they produce felt affections, has effects upon prisoners as well as upon other involved actors. Thinking in fixed categories of torture or ill-treatment does not solve, but only restricts or pushes the limits of, defined torture methods. For instance, the focus on non-refoulement obligations gears the analyses towards the topic of torture, at the detriment of the lived experience of the transfers.

I suggest, following Mussawir (2011) and Lefebvre (2008), that legal orders are situational. There is, then, not simply a right way to interpret legal orders,

80 precisely because of the situational character of rights and laws (Lefebvre, 2006,

2008). The mere assertion of the applicability of a legal order is problematic, because it presupposes straightforwardly determinable and pre-given legal categories (Lefebvre, 2008), yet, as the example of enemy combatants illustrates, human beings are not necessarily recognised as human subjects with Human

Rights. I argue, then, that the rights’ contents, their allocation, and the very subject status of human beings are far from straightforwardly given. What is needed is a better grasp of the lived experiences of extraordinary rendition and the ways in which rights, their allocation and the subject status of human beings are enacted through the feelings, decisions and actions of various actors.

2.3 Creativity in Evaluating Extraordinary Rendition

As I suggested in Section 2.2, the idea of prisoners and perpetrators being put ‘beyond the reach of law’ is catchy, yet problematic. What does it mean to set extraordinary rendition outside the reach of law? In considering this question, I problematise the tendency towards a fixed and clear conception of judicial proceedings based upon the territory in which an offence occurred, perpetrators’ subject status and the transgressed legal order. Then, I problematise the conception of a space of exception and finally the prevailing concern with subjects being ‘stripped of their rights’. I argue that the question of extraordinary rendition’s continuation, in spite of its illegality, raises questions about human beings’ capacity to evaluate. That is, with the question of why the illegality of the practice does not stop some people from engaging in extraordinary rendition. My aim in this chapter is not to merely bemoan the fact that the practice of

81 extraordinary rendition persisted so long despite its illegal status, nor do I want to provide a macro-explanation as to why this is the case. In discourse on the ‘state of exception’ for example, social scientists, following Agamben, have argued that in an environment of “globalized fear” (Pain 2009, 466) and the subsequent reduction of politics to the provision of security, law is suspended to meet the demands of this ongoing state of exception (D’Arcus 2014). My concern with such discourses is that they remain too macro and that they offer too little explanatory power. As Ben

Anderson and Peter Adey (2012) suggest, the idea of the state of exception does not explain the day to day governance of people. In suggesting that the discourse of the state of exception does not sufficiently remedy the problem of extraordinary rendition’s continuation, I do not, however, wish to provide a prescription through which such practices and their perpetrators might be called to account. It is not merely a question, for example, of clarifying the ambiguity of territory (Gregory

2006), since, as Elden (2009) suggests, the notion of territory is constitutively ambiguous. Finally, it is necessary to question the presumptions of the right- bearing subject, for the contemporary conception of the subject is inadequate to account for the variability of experience and evaluative practice.

In this subsection, I wish to draw attention to three different issues in order to emphasise the intricate and creative aspects of judicial proceedings: firstly, spaces of law are constituted by multiple human and non-human beings, which are the result of micro-practices embedded within wider society. I challenge the fixity of judicial structures, an aspect of judicial proceedings. Secondly, I problematise the idea that exceptions account for the changes in structures that can be observed. I suggest that the exception is an after-the-fact assessment, rather than

82 having genuine explanatory power and thus suggest problematising the conception of human beings upon which it rests.

2.3.1 Potentialising Judicial Proceedings

While I have listed these issues separately above, I now highlight their intricate interdependency and the creativity of the intertwined legal categories of territory, subject status and legal orders in their production of multiple spaces of law. To speak of creativity here is to refer to the production of novelties; that is, to the potential for change.

It is a truism to say that law is an institution constituted by social practises

(Martin, Scherr, and City 2010). Deborah Martin, Alexander Scherr, and

Christopher City (2010) argue that legal geography has focused on the outcomes of legal processes or on the spatialities of existing laws at the detriment of the practices of law. Legal geography investigates the role of law in social activism and the interpretation given to law by specific actors, yet, as Martin et al. (2010) point out, it focuses on the outcome of law and does not answer the question of how various actors perform, produce, and invoke the law. Lawyers take part in shaping legalised conflicts, and through their interpretations and enactments of the law, they affect socio-spatial contexts and spatial norms. Martin et al. (2010) emphasise that lawyers’ practice takes four dominant forms: lawyers translate meaning; they transform meaning; they act as agents of separation and transactional cost; and finally they exert power of alteration and mediation (Martin, Scherr, and City

2010). Similarly, Barkan (2011) pleads for an analysis of how and where consent for (state) policies is negotiated.

83 The relevance of judges within judicial procedures and the potential for further research this field constitutes have been noted in other disciplines as well.

Professors of law, Richard Moorhead and Dave Cowan (2007, 315) note that traditionally, judging is conceptualised in “reference to the written word, decontextualizing it from the geographical and social space in which it is produced.” While there is a significant body of work on the political background of judges, there is “a distinct lack of interest in the minutia of judging” (Moorhead and

Cowan 2007, 316). Moorhead and Cowan assert that “[p]rofessionals tend to concentrate on the outcomes of cases” (2007, 319) and deplore that the focus lies on “the purity of adjudication” and “how politics and discretion corrupt the ideal”

(2007, 316). They (2007, 318) highlight that judging takes place in a space “filled with all sorts of non-legal noise.” In their words, “evaluations of parties, evidence and applications take place using heuristics that have as much to do with middle- brow morality as they do with refined legal judgement (Cowan), and time is used both to structure and control proceedings (Mack and Anleu)”. Judgecraft, then,

“shapes meanings, establishes ‘truths’, and fixes or unfixes notions of fairness in the litigants’ heads” (Moorhead and Cowan 2007, 319).

In actual fact, judicial proceedings are enacted in minute, everyday practices. Levy and Sznaider (2006) highlight trials as important sites of transformations of the law and argue that they are sites of meaning production and thus bear transformative opportunities, as they create, sustain, transform and change the social order (Levy and Sznaider 2006). The dramatic enactment of war crime trials have not only an educational and moral purpose, but also are

“changing law from within”, Levy and Sznaider (2006, 662) argue. I explore the

84 importance of analysing the minutiae of the performance of law in the next subsection.

Judicial proceedings are embedded in society and build upon the interdependent categories of territory, subject status and legal orders. The conception of Human Rights illustrates the intricate relation of Human Rights and sovereignty (Agnew 1994; Elden 2009; Levy and Sznaider 2006) and some have argued that Universal Human Rights have the potential to challenge conceptions of sovereignty (Agnew 1994; Elden 2009). The concept of ‘contingent sovereignty’ legitimises humanitarian interventions or interventions to protect the civilian population (Agnew 1994; Elden 2009). The concept further legitimises interventions against states that allegedly harbour terrorists and pursue weapons of mass destruction (Elden 2009). The global processes of the 21st century have challenged the territorial premises of sovereignty and the rights’ reliance on nationality (Levy and Sznaider 2006). For instance, Human Rights challenge the legitimacy of some states’ actions in that they can violate Human Rights (Levy and

Sznaider 2006). Human Rights thus restrict a state’s actions, whereas not abiding to these rights results in states losing legitimacy (Levy and Sznaider 2006). Levy and Sznaider (2006) argue that globalisation processes and universal rights discourses do not dismiss state sovereignty, but re-configure sovereignty and de- nationalise legitimacy (Levy and Sznaider 2006). Levy and Sznaider (2006) claim that the transformation of sovereignty we witness is not the erosion of states, but the very condition of their maintenance of legitimacy. Levy and Sznaider (2006) conclude that sovereignty is taken away from the national sovereign and given to non-state organisations. Mussawir (2011) similarly highlights the entwinement of

85 judicial proceedings and society. He emphasises that Human Rights are not set and act within the legal framework, but act at a political level. A category such as genocide may reflect strong moral judgements and be poorly framed in legal terms, because, as Mussawir (2011) argues, Human Rights aim at raising international indignation.

In sum, to understand why some people engage in extraordinary rendition, one needs to do more than assert the intentional manipulation of the law or the exceptional status of the place, people or circumstances. Certainly, important work has been done to evaluate the fragmentations across territory and authority, which result in disputes about the applicability of laws. While such studies aim to re- assert the legal status of extraordinary renditions’ sub-practices of transfer, interrogation-torture, and detention, my concern is that the categories of judicial structures — territory, subject status, legal orders — are considered to be too fixed and clear-cut. While territory, subject status and legal orders have been problematised on their own, as depicted above, their continuous co-constitution requires more attention within analyses of extraordinary rendition. Following

Lefebvre (2008) and Mussawir (2011), I wish to emphasise the creative aspect of judicial proceedings. I suggest that to explain why some people engage in extraordinary rendition it is fruitful to examine how the involved actors’ feelings, thoughts and acts constitute and affect the capacity to evaluate and their wide- ranging effects upon judicial proceedings.

86 2.3.2 The Issue with the Idea of Exception

The metanarrative of exception does not explain precisely how ‘exceptions’ function or why some people engage in ethically dubious practice while others do not. The existence of an exception or a global state of emergency does not, in and of itself, explain how events and life are governed or with what consequences

(Anderson & Adey, 2012). As Anderson and Adey (2012) argue, the concept of state of emergency has been looked at extensively, yet little attention is given to how an emergency is deployed by states and other actors. The metanarrative of fear is re-performed in and through everyday practices, “rather than being formed through an epochal ‘age of’ or ‘culture of’ x or y emotion” (Anderson & Adey, 2011,

1107). Anderson and Adey also (2011, 1107) highlight that this “allows us to understand security as working through multiple, partially connected, apparatuses that are themselves in a state of perpetual (re)elaboration.” They emphasise that one has to look at how versions of emergency are assembled before, during, and after emergencies. Anderson and Adey specify that emergency always involves claims about events and the world and argue that there are different ways of governing through emergencies beyond the legal-political declaration of a ‘state of emergency’ (Anderson & Adey, 2012). What is required, then, is an analysis of the conceptualisation and functioning of exceptions (Anderson & Adey, 2012; see also

Belcher et al., 2008; Johns, 2005).

Re-thinking the exception as a result of minute performances aims to emphasise the significance of actors’ everyday practices. Anderson and Adey

(2011) point out that feelings, such as emotions of fear, shape situations and are shaped by situations. Analysing emergency simulations, they argue that not just

87 the rational posing of the problem, but also the emotional atmospheres of simulations, are crucial. Anderson and Adey (2011) outline the instrumental manipulations of atmospheres and emphasise that security atmospheres are imbricated in a large and complex security apparatus. Security is a composite, it is constituted by multiple entities such as “techniques, machinery, practices, objects, and people” (Anderson & Adey, 2011, 1095). As these atmospheres are not straightforward effects, but active parts of apparatuses, these atmospheres

“emerge and fade, intensify and dampen” (Anderson & Adey, 2011, 1096).

Pain (2009) draws attention to an important point, namely, that people are not simply disempowered by efforts at manipulation. She emphasises the embodied, individual aspects of emotions and suggests that the metanarrative of globalised fear posits people as passive and helplessly exposed to the manipulations of their feelings. Human beings are thought to simply absorb emotions without resistance. She rejects the notions that human beings are simply disempowered by manipulations, however. Isn’t fear, Pain (2009, 474) raises the question, “reacted to, thought about, reformulated, resisted and reshaped into other emotions and actions? Don’t feelings have transformative power of their own?” For Pain (2009), emotions are geopolitical, for instance, fear is complex and situational. Furthermore, Pain explains that emotions such as fear can be both harmful and positive: emotions “are embedded in cultural, economic, social and spatial micro-geopolitics” (Pain 2009, 474). They are local and global; they are imposed and resisted.

Both, Anderson and Adey (2011) and Pain (2009) reject the metanarrative of an overarching culture of fear as an analytic tool and favour a micropolitics of

88 the everyday. In Pain’s (2009, 474) words, the issue with metanarratives is that there is “little room for agency in accounts of globalized fear”. In contrast, Pain

(2009) argues that analysing emotions through a micropolitics of the everyday opens up spaces of intervention. Such an approach puts into question the common conceptions of human agency, human being, and emotions (Pain 2009); an embodied geopolitics emphasises everyday experiences (Pain 2009). Following

Anderson and Adey (2011) and Pain (2009), this thesis suggests that a micropolitical approach to affections is a productive means to re-think the conception of a responsible human being. It further draws out the embodied geopolitics of experiences and practices.

Therefore, I suggest to problematise the conventional approach to human beings as a possessing, as if naturally, a subject status. The metanarrative of exception implicitly treats the subject as a given with inherent Human Rights that were stripped of rights (D’Arcus 2014). This conception misses the processual aspects of subject status and the creative aspects of rights and of judicial proceedings in general. Subjects are often implicitly depicted as fixed, despite the increasing recognition of the subject status as produced (Roberts 2012). Since the

20th century the conception of the subject status of human beings has been increasingly problematised (Roberts 2012). The different subject positions in society and their characteristics are not given, but recognised as historically contingent (Foucault 1989). The conventional conception of individual subjects remains that of a self-contained and self-autonomous, determining subject with inner depths (Story 2014). This presupposes an individual ‘as-such’ and the idea of self-governing subjects (Story 2014). While the claim that the subject status of

89 bare life is a historically contingent product is important, the question of its relational and situational transformations remains to be explored. How is it that prisoners transform qualified life to bare life?

2.4 Evaluating Extraordinary Rendition

In this last section, I sketch the argument of my thesis and the contribution that a micropolitical approach lends to the understanding of extraordinary rendition. I start from the premise that judicial proceedings are creative. From that point, the thesis re-formulates the categories of territory, subject status and legal order as in a process of constant transformation. This re-formulation has repercussions for the conceptualisation of the capacity to evaluate in that it emphasises the importance of fostering this capacity. An intensive approach addresses some of the limitations of determining and distinguishing between torture versus other forms of abuse, legal versus illegal, and right bearing versus right-less beings. Insofar as conventional analyses of the space of exception are set within a voluntaristic framework, I supplement this framework by suggesting that it is more than simply wilful manipulation of legal orders, which enables extraordinary rendition. Similarly, the practice has important effects beyond intentionality, which affect prisoners, perpetrators and the wider society. The major gap I tackle, then, is the fixity of categories. I suggest starting from intensities rather than categories, for categories are restrictive. For instance, Sharp

(2011) raises the question of whether the conventional approach recognises existing, fixed identities, or if it produces these very identities in the first place.

90 The thesis problematises the fixity of identities and draws attention to the richness and complexity of life by drawing on Deleuze (1994), Spinoza (1994) and

Simondon (2009b). Adopting and combining their approach implies an ontological shift and fundamentally changed assumptions about the world and life. This allows conceptualising both change and stability in a way that emphasises the multiple forces continuously affecting beings and their constant transformations (Deleuze

1994). A Deleuzian, non-representational and micropolitical approach sensitive to intensities emphasises the many forces acting within and on extraordinary rendition.

What, then, are the advantages of my approach to understanding extraordinary rendition and the lack of evaluation? Rather than treating the practice as abnormal, unique, or exceptional, my thesis highlights the multiple forces that affect extraordinary rendition and responsibility. I problematise judicial proceedings to avoid the fixed identities of ‘the state’s territory’, ‘the state’s authority’, and ‘the state’s legal order’ and thus challenge the idea of judicial proceedings as a mere process of subsumption under categories. I emphasise, rather, the creative aspect of judicial proceedings and the continuous co- constitution of territory, subject status, and legal orders. Judicial judgement, far from simply fixing and positing what is legal or illegal, is the effect of multiple enactments; each performance of, among others, the prisoners, perpetrators, and lawyers, re-actualises the meaning, content, and reach of territory, subject status and legal order. Human beings’ affections impact on judicial proceedings, insofar as the affections of prisoners in extraordinary rendition increase the amount of labour to prove beyond doubt a prisoners’ statement due to the practices of

91 disorientation. Prisoners are shaped intentionally and unintentionally well before arriving at the detention facilities.

Outlining the importance of human beings and their affections requires problematising the common sense understanding of human beings. The thesis’ conceptualisation of the complexity of human beings highlights the fact that their capacities vary continuously. Human beings are in constant and mutual processes of constitution with their milieu. I highlight the fact that perpetrators are affected by extraordinary rendition, as well as other, less directly involved actors such as lawyers, activist, and investigators and, more generally, society as a whole. Neither the ‘external’ milieu — such as the judicial system — nor the particular individual human beings — such as prisoners or perpetrators — are pre-given products.

From this re-formulation, it follows that the capacity to evaluate is varying and requires cultivation. Evaluations and the multiple forces constituting it have to be cultivated; it is a habit of being in the world. Both interior and exterior milieu capacitate or de-capacitate human beings and their capacity to evaluate. This has important repercussions, for the capacity to evaluate is required in order to hold perpetrators responsible. This approach illustrates the influence of forces before, during, and after extraordinary rendition on the capacity to evaluate and so opens up spaces of intervention.

92 Chapter 3

Transforming Beings

Re-thinking the capacity to evaluate in extraordinary rendition provides important insights into its functioning and into why some people engage in this ethically dubious practice. It is commonly asserted that the US government wilfully re-interpreted the law in order to perpetrate extraordinary rendition and to dismiss responsibility (D’Arcus 2014). Previous studies tend also to focus on intentions: for example, Jamal Barnes (2016) analyses how norms retain their force to explain why extraordinary rendition has to hide, despite the OLC memos declaring the legality of EITs. This thesis emphasises forces going beyond actors’ intentions in order to draw out the wide-ranging effects extraordinary rendition has and the multiple and often unpredictable ways it affects the actors involved. To do so, I develop an alternative approach, which underscores that many actors’ feelings, thoughts, and actions enact extraordinary rendition’s legal status, while also enacting spaces of law and actors’ capacities to evaluate.

In order to draw out the creative processes of enacting the illegality of a practice I problematise the judicial proceedings that lead to the assertion of a legal status and emphasise the importance of actors’ feelings, thoughts, and actions. On one hand, I argue that the illegality or legality of a practice is not given as clearly as often imagined and examine two crucial constituents of judicial proceedings: judicial structures and the litigating actors. Drawing on Mussawir (2011) and

Lefebvre (2008), I point out that judicial proceedings are not simple subsumptions of cases under given legal categories. In problematising the functioning of judicial proceedings, I argue that the judicial structures are enacted by various actors’

93 intentional and unintentional decisions and actions. Therefore, I re-formulate the conception of human beings in a second step in order to draw out how their capacities are effects of multiple human and non-human forces (Deleuze 1988b;

Sharp 2011; Spinoza 1994). These re-formulations highlight how many people other than the prisoners are affected by and affect extraordinary rendition. In this chapter I set out the ground of my re-formulation of judicial proceedings and of the capacity of human beings to evaluate, which I develop in the subsequent chapter. I argue that evaluating is a complex and fragile capacity that allows for agency and so constitutes the capacity for responsibility. This capacity to evaluate and, consequently, to be accountable, is something that must be cultivated.

This chapter unfolds the implications of drawing on a Deleuzian, non- representational and micropolitical approach with regard to the later re- formulation of judicial proceedings and of the individual capacity to evaluate.

Firstly, in Section 3.1, I outline key aspects of a Deleuzian approach and Deleuze’s reading of Spinoza and Simondon to explicate how they highlight the multiple and minute forces that constitute social structures and human beings. Section 3.2 potentialises judicial proceedings by drawing out the transformation of judicial structures and hints at the importance of the actors enacting them. In section 3.3, I re-formulate the human being to draw out the multiple affections it experiences and their implications for its capacities.

3.1 A Rich World of Affections

Deleuze (1994) argues that representations of the world necessarily reproduce a dogmatic image of thought, which is hostile to forces of becoming. In

94 Nietzsche’s (1967, 550) words, the world is “a sea of forces flowing and rushing together, eternally changing, eternally flooding back”. The world is in a process of constant transformation, because multiple and possibly conflicting forces constitute it (Deleuze 1994). Deleuze’s (1994) conception of repetition, as a mechanism for the production of difference, amounts to the claim that the seeming stability of identities is a secondary effect of more primary differential operations.

In order to understand his concept of repetition, it is necessary to conceptualise the world as simultaneously actual and virtual, both of which are equally real

(Deleuze 1994; Williams 2003); the virtual realm exists not in opposition to a ‘real world’, but in opposition to the actual (Deleuze 1994; Williams 2003). As Maria

Hynes and Scott Sharpe (2015) explain, the world is constituted by material expressions of virtual forces that always exceed their actualisations. Actualisation denotes the process through which aspects of virtual forces, of affect, are expressed in the actual world (Deleuze 1994; Hynes 2015; Williams 2003). While affect is used in the singular, it encompasses multiple co-existing and possibly conflicting forces. Affect is an evolving force that bridges the distinction between the material and immaterial (Massumi 2005). It is omnipresent and exercises power continuously (Kraftl and Adey 2008; Massumi 1995).

In attempts to potentialise the world, scholars have become increasingly interested in the conceptions of often imperceptible forces, so called background forces. For instance, Mountz (2013) notes the trend of studying power relations that are hidden, ghostly, shadowy, ambivalent and nefarious. The term force describes the multitude and minute ideas and bodies of both human and non- human beings that exercise power over other beings (Sharp 2009). Forces are

95 what makes a being respond and resonate with the matter in and around it

(Lapworth 2015a). This conception of force stands in contrast to a reductionist, linear cause-and-effect relation. According to Anderson (2009), an attention to such background forces links various heterogeneous actors and so dissolves dualistic conceptions. For example, actor-network scholars describe assemblages of heterogeneous entities constituting human and non-human entities through concepts such as the ‘arena’ (Pineda 2010), ‘assemblage’ (Farías 2010) or ‘gel’

(Tironi 2010). Actor-network scholars then depict objects and infrastructures as coagulations that tend to become amorphous entities (see Hommels 2010). They stress the temporality, fluidity, and mobility of participants in networks (see

Roitman 2005); and they point out that networks consist of actors, who are themselves nothing other than networks (see Schillmeier 2010).

Deleuze’s (1988b, 1994) concept of the virtual is distinctive from other conceptions of background forces, because of the virtual’s relation to the actual world and the conception of beings as varying capacities. Deleuze (1988b) draws on Spinoza’s (1994) conceptualisation of affect that denotes the non-graspable, excessive virtual force, which becomes partially actualised into affections. Despite receiving increasing attention in Geography and other disciplines, the definition of affect remains vague (Thrift 2004). In part, this vagueness originates in the conflation of affect and affections in the translation of Spinoza’s Ethics (Deleuze

1978b). It follows that the various non-representational theories exhibit different conceptions and applications of affect. For instance, Thrift (2004) distinguishes between four distinct conceptualisations of affect: Katz’s concept of ‘response- ability’, Sedgwick’s use of affect associated with psychoanalysis, the Darwinian

96 strand understanding emotions as products of evolution, and the Deleuzian-

Spinozist affect theory (Thrift 2004). This fourth stream of affect theory understands beings as composed of one substance with infinitely many expressions. Yet, different conceptions of affect co-exist even within the Deleuzian-

Spinozist approach.

This thesis draws upon the Deleuzian approach, since, as Smith (2007) notes, it is the understanding of affect that best connects actors to their powers and enables us to conceive of the variability of such capacities. This latter view of affect, then, allows me to conceptualise the multiple forces affecting judicial proceedings and human beings, beyond the intentions of actors, who are themselves seen as intensive coagulations of force. Firstly, drawing upon Deleuze’s

(1994) conception of repetition emphasises the multiple forces that affect beings and describes how the infinity of affective force is expressed in actual differences

(Williams 2003). In this way, stability and change in categories can be explained

(Deleuze 1994). Deleuze (1994) is critical of the seeming consistency of identities, such as categories, through the concept of false repetition. The issue with the conventional conception of repetition, which he terms false repetition, is that it is a repetition of ‘the same’ and so suppresses the thick potential of the world (Deleuze

1994). In contrast, Deleuze’s concept of real repetition conceptualises repetition with difference (Deleuze 1994; Williams 2003). Deleuze’s (1994) concept puts difference to the fore and so emphasises transformations. Lefebvre (2008, 66) explains that (real) “repetition has nothing to do with an identically repeating series; instead, […] difference is always introduced by repetition, and that in repeating, a thing becomes different from itself.” Deleuze’s rejection of the

97 common conceptualisation of the world as constituted by originals and their more or less accurate copies is extremely important to understand change within individuals despite their seemingly stable ‘identity’. In real repetition there is no successive copy that is judged based on analogy; instead, beings are series of repetitions, which always bear differences (Deleuze 1994). And yet, real repetition and its effect of false repetition occur simultaneously (Deleuze 1994):

Things acquire an actual identity through repetition.

Intensities come into relation with each other through

repetition. Repetition allows us to explain the relation of

virtual events to actual events and vice versa. Put simply,

this means that things acquire fixity, that is, they acquire

parts and hence boundaries through repetition (Williams

2003, 11).

In sum, the identity returns but only in a secondary step (Deleuze 1994). The false repetition of identities we see is the effect of an underlying real repetition, which bears differences each time. To put it another way, seen from the point of view of expression rather than representation, the whole world is repeated, including its unperceived differences. It follows that it is in and through every encounter that categorical and specific differences emerge (Deleuze 1994; Williams 2003).

Distinctions and categories are secondary effects of repetition and thus the kinds of categorisations that structure much of our thinking are necessarily restrictive

(Deleuze 1994).

98 Deleuze’s understanding of repetition as a mechanism for the production of difference emphasises the multiple effects of forces, which are strictly in excess of actors’ intentions, as well as efforts to recognise such intentions for the purposes of judgement. A Deleuzian based non-representational approach is thus critical of the restrictions of recognition (Sharp 2011). Representations of the world and any categorisations are restrictive, because there are always forces exceeding categorisation (Hynes 2015; Sharp 2011; Sharpe, Dewsbury, and Hynes 2014).

Importantly, and as Anderson (2009, 2014) notes, this conception of force bypasses the distinctions between nature and culture, material and immaterial, subject and object, living and non-living, and intentionality and non-intentionality.

As Anderson and Harrison (2010, 18) point out, the “task becomes to grasp” how social categories “form, become durable and exert a force alongside the many other relations and relational configurations”. With regard to extraordinary rendition, then, the task is to analyse how categories of torture, rightless prisoners, and responsible perpetrators are enacted.

A Deleuzian approach requires starting from intensities to analyse phenomenon without pre-judging on the basis of categorical schemas. With regard to extraordinary rendition, the thesis unsettles the categories of judicial proceedings in order to unveil the importance of the involved actors’ feelings, thoughts and actions. This intensive approach draws out the intensities of the lived experience of extraordinary rendition. For instance, it draws out the viscerality of transfers. This is important, as a prisoner recalls that his transfer “was certainly a piece of torture” (Slahi 2015, 32). In Chapter 5, I show the importance of not pre- categorising the affections of prisoners, in order to draw out the richness of their

99 experiences and the potential of their affections, which are only crudely rendered as ‘negative’ or ‘positive’. Affections demonstrate the clear impact of action on prisoners of extraordinary rendition, in a way that cannot be captured by their categorisation as ‘torture’ or ‘lesser form of abuse’, of ‘compliance’ or ‘resistance’.

So-called innocuous practices can have massively deleterious impact on prisoners’ bodies and minds, while prisoners find surprising micropolitical means to ‘resist’ and foster their self-concept.

The issue of presupposing the return of the same becomes evident in debates about which methods and in what quantity they constitute torture. The debates around the determination of torture methods call for limitations in the duration and repetition of a technique. In contrast, an approach based on intensities explicates that repeating the ‘same’ method of torture has different effects on the ‘same’ victim. David Weissbrodt (2006, 36) explains that techniques of stress positions are deemed torture, when applied for longer than four hours.

Stress positions, such as extended standing or sitting (ICRC 2007), are restricted to

“a maximum of four hours” (Weissbrodt 2006, 36) yet “there is no indication how often stress positions may be repeated or how much time the detainee would have between the use of techniques”, Weissbrodt (2006, 36) points out. The restrictions of duration elude to the issue of the categorisation of practices. For as, Weissbrodt

(2006, 36) then points out that former Secretary of Defense Donald Rumsfeld

“handwrote a complaint: ‘However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?’” A related example of the significance of intensities is the practice of prolonged sitting. As the prisoner Zubaydah points out, sitting in a chair can become agonising after time: “I was kept sitting on a chair, shackled by hands

100 and feet for two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting” (ECHR 2015b, 40). Duration is thus one force affecting the techniques of prolonged standing and sitting. I suggest that in order not to foreclose our understanding of the phenomenon of extraordinary rendition, we have to take these multiple intensities seriously, which constitute and affect actors’ feelings, thoughts, and actions. The Deleuzian sense of affect, for example, implies that, for example, the effects of prolonged sitting on individual human beings are dependent upon many perceived and unperceived forces. And while we recognise some of these forces, such as the duration or the place, many other not yet recognised forces affect the way in which prolonged sitting is experienced.

3.1.1 The Complex Composition of Beings

In the following paragraphs I outline the advantages of a Deleuzian (1978a,

1978b, 1988b) reading of Spinoza. I point out the complex composition of beings in terms of bodies and ideas and explicate Spinoza’s (1994) concept of parallelism.

This complex composition further implies multiple affections and draws out the continuous increase and decrease of beings’ capacities. As a last point, I set out the relationality that a Deleuzian-Spinozist conception of beings8 implies.

8 The term being encompasses all kinds of human, discursive and non-human bodies (Deleuze 1988b). On the same note, the term individual denotes living and non-living, material and immaterial composites (Simondon 2009b).

101 The Deleuzian-Spinozist approach conceptualises beings as composed of spatial extensions (bodies) and mental ideas9 (Spinoza 1994; Thrift 2004). Beings are complex composites of an infinity of subbodies, which relate to each other by transmitting motion and rest in a fixed manner, so as to be perceived as ‘one’

(Deleuze 1978a, 1988b; Spinoza 1994). Each particular body, then, is characterised by its specific ratio of movement and rest (Deleuze 1988b; Spinoza 1994).

Beings are further constituted by an infinity of ideas (1988b; Sharp 2011;

Spinoza 1994). This infinity of ideas chasing each other, the series of ideas, constitutes the individual’s mind and the specific ways of connecting ideas gives consistency and uniformity to the mind (Deleuze and Scott 2011). Ideas precede and exceed the mind (Sharp 2011); they are affected by and affect other ideas in that they grow, shrink, and die (Sharp 2011). It follows that the mind is not given and fixed, but the effect of associations of ideas (Deleuze and Scott 2011).

Spinoza’s concept of parallelism stresses that affections always affect the single substance of the whole being (Deleuze 1978b; Sharp 2011; Spinoza 1994).

Bodies and ideas do not interact, but parallel each other because both body and mind follow the same logic of connection (Deleuze 1988b; Sharp 2007; Spinoza

1994). The implication is that the power of the body always equals the power of its mind (Deleuze 1988b; Spinoza 1994). Ideas or sensations always affect the whole being and its power of action (Deleuze 1988b; Spinoza 1994). Thoughts, then, are the results of affections, which occur in the encounter of bodies (Deleuze 1988b).

The oneness of beings further implies the equal reality of both ideas and bodies

9 Amongst an infinity of attributes, human beings perceive two attributes: thought (ideas) and extension (bodies) (Deleuze 1988b; Spinoza 1994).

102 (Deleuze 1988b). Neither ideas nor bodies are superior to the other, yet, the distinction between thoughts and spatial extension is still important, as only ideas can affect ideas and only bodies affect bodies (Sharp 2011; Spinoza 1994; Thrift

2004).

Encounters have non-actualised virtual facets and each moment, which effectively means that each moment is full of potentiality (Hynes and Sharpe

2015). The encounter is the space in which affect exercises power; it is in the encounter that affect becomes actualised into affections (Lapworth 2015a). That is, the encounter bears the possibility to transform existing relations: they are renewed, disconnected and novel connections are formed (Lapworth 2015a).

Because mind and body are one, encounters are at the same time a mixture of bodies and a mixture of souls (Deleuze 1978a, 1978b):

When I say ‘This one does not please me,’ [...] There is a

noxious mixture […], as much at the level of the body as at

that of the soul. […] Thus there isn’t any reason to make up

differences between spiritual sympathies and bodily

relations (Deleuze, 1978b, no pagination).

The re-formulation of beings as complex compositions highlights the continuous affections beings experience. Increasing and decreasing affections impact on beings perpetually and simultaneously in perceived or unperceived ways, because they consist of an infinity of subbodies and ideas (Deleuze 1988b;

Sharp 2011; Spinoza 1994). It follows that the more complex an individual is, the

103 more concurrent and contradictory affections impact on the being at any time. For, as Aaron Schuster (2016, 55) describes, even the simplest needs are a coagulation of multiple forces:

Even the most basic of needs, like hunger, presupposes all

the little powers that make up appetite, sensation,

perception, nutrition, and so on, a whole expansive

network of contracted elements, and these are what

constitute the real driving force of the organism.

Put differently, beings are full of unperceived forces, which lead to both stability and change (Deleuze 1994; Patton 2010; Williams 2003).

I suggest using the term ‘transformation’ to conceptualise this continuous modulation of affections and thus variations, whereas I use the term change to refer to a recognised categorical change. Transformations can lead to change, but they can also be unperceived (Sharp 2007, 2009; Smith 2007). As Sharp (2007, 70) illustrates, “we remain unconscious of the activities of our organs, bloodstream, immune system, and so on, [and] we also remain unconscious of the various ideas that impact and circulate within our minds.” Importantly, affect is only grasped through its effects (affections), while it simultaneously always exceeds them

(Massumi 1995). For instance, eating an apple in contrast to eating arsenic illustrates this transformation (Deleuze 1978b): while the body digests the apple, takes nutrition out of it and secretes residues, the human being is not understood to have changed by eating the apple. The human being does not die as it would

104 when eating arsenic (Deleuze 1978b). A Deleuzian-Spinozist non-representational approach, then, explains how change is possible and how stability is in fact a result of our restricted manner of thinking (Deleuze 1994; Patton 2010; Williams 2003).

The most common description of affect is that it is the capacity to affect and to be affected (Deleuze 1978b; Sharp 2011; Spinoza 1994). One implication of these transformations through non-graspable affect is that they constitute continuous and infinitely small increases or decreases in beings’ capacities

(Deleuze 1978a, 1978b). Affect is a variation of power and consists of an increase

(‘positive’, joyful affection) or a decrease (‘negative’, sad affection) of one’s power of action (Deleuze 1978b, 1998; Kraftl and Adey 2008). When a being “encounters another mode, it can happen that this other mode is ‘good’ for it, that is, [it] enters into composition with it, or on the contrary decomposes it and is ‘bad’ for it. [...]

Accordingly, it will be said that its power of acting or force of existing increases or diminishes, since the power of the other mode is added to it, or on the contrary is withdrawn from it, immobilizing and restraining it (IV, 18 dem.)” (Deleuze 1988b,

50). As Spinoza (1994) explains, then, feelings of pleasure can be evil in that they are decreasing one’s force of existence, while feelings of pain can be joyful if they increase one’s power of action. Positive or negative affections thus refer to the variation of an individual’s power of action and not to how they affect others’ power of action. This is an important distinction for later analysis of ethical evaluation, as it implies that degrading a victim, for instance, diminishes the prisoners’ capacities, but it does not increase the perpetrators’ capacities. That is, the evaluation of increasing or decreasing capacities is not done with regard to moral standards but to one’s power of action.

105 The concept of affect thus highlights the importance of the milieu for empowering beings’ capacities. For example, Peter Kraftl and Peter Adey (2008) describe affect as a push-and-pull force, while Latham and McCormack (2009) use the idea of amplification and resonance to describe the increase in power. Deleuze describes the passage in terms of compositional and agreeable encounters

(Deleuze 1978b). To come back to the example of eating an apple, this constitutes an ‘agreeing’ composition (Deleuze 1978b): when a human being eats an apple, its body and the apple agree in that its body can extract nutrition. The ‘positive’ combinations of subbodies into a composed body constitute an increase in power; the composed body has a greater power than its parts (Deleuze 1978a, 1988b). On the other hand, bodies disagree/decompose, when the encounter is ‘negative’. A decreasing affection is constituted by a mixing of bodies that threatens, compromises, or destroys constitutive or subordinate relations of one’s body

(Deleuze 1978b). Deleuze (1978b) exemplifies this in the act of taking arsenic, which is decomposing, insofar as it weakens the human being and in an extreme case it will die. Deleuze (1998) further draws attention to the two-sidedness of affect with regard to the two ends of the relations: while arsenic decomposes the human body (death), arsenic experiences a ‘positive’ affection.

The complex composition of beings implies that beings experience simultaneously increasing and decreasing affections (Deleuze 1998). Human beings constantly vary (Sharp 2011; Spinoza 1994) and thus the limitations of beings’ capacities are always only temporary (Abrahamsson and Simpson 2011).

Brian Massumi (2002) illustrates the infinity of variation effectively with the example of the philosophical arrow:

106

When Zeno shoots his philosophical arrow, he thinks of its

flight-path in the common-sense way, as a linear trajectory

made up of a sequence of points or positions that the arrow

occupies one after the other. The problem is that between

one point on a line and the next, there is an infinity of

intervening points. If the arrow occupies a first point along

its path, it will never reach the next – unless it occupies

each of the infinity of points between. Of course, it is of the

nature of infinity that you can never get to the end of it

(Massumi 2002, 6).

With regard to extraordinary rendition, an important implication of this philosophy is that prisoners’ capacities vary throughout their ordeal. The

Deleuzian-Spinozist conception of affect conceptualises the perpetual and omnipresent transformations, highlights the mutually constitutive relationship between the practice and the actors involved, sets out the fragility of human beings bodily and mental capacities, and so emphasises the importance of cultivating beings’ capacities. Thereby, Spinoza’s concept of parallelism is crucial to understand how both the mental and the physical environment are equally important in affecting the involved actors. Furthermore, this conception of affect explicates why and how something like prolonged sitting does not produce a singular, straightforward affection of discomfort, but that, rather, the affection varies greatly depending on previous experiences and the actual circumstances.

107 The concept of the virtual highlights the multiple forces that shape the experiences that the technique induces. The concept of affect thus challenges the image of

‘breaking’ prisoners, because the prisoners’ selves and their capacities are never fixed but always undergoing transformation.

A final aspect I wish to highlight at this point is that affect resides in relations and that it draws attention to beings’ relationality. This aspect is crucial for the later argument that affections impact on both the receiving prisoners and power exercising perpetrators. Affect exercises power through relations, that is, beings are affected by being in relation with other beings (Deleuze 1988b; Sharp

2011; Spinoza 1994). Put differently, affect resides in-between beings, it is not possessed (Anderson, 2009; Kraftl & Adey, 2008; Thrift, 2004). Thrift (2004) specifies that affect exists only in encounters: only when two bodies or two ideas connect can they affect one another. There is, then, no simple inside and outside of beings; instead they are intertwined (Allen 2012).

It follows that affect is not a potential in the naively positive sense of being

‘free,’ because it takes effect in relations between beings. Kraftl and Adey (2008,

227) posit that “[a]ffect is not merely a random swirling of potential, coming to rest at one moment”. Anderson’s (2009) description of affective atmosphere is illustrative for the permeability, constancy, and omnipresence of affect and for the manner in which it exceeds the individual being. He outlines that affective atmospheres precede and go alongside subject formations. Affect transcends categories, such as that of the subject-object (Anderson, 2009). In Anderson’s

(2009, 78) words, “[a]tmosphere traverses distinctions between people, things, and space. [...] Perhaps there is nothing that doesn’t have an atmosphere or could

108 be described as atmospheric”. An implication of Anderson’s (2009) analysis is that the very distinction between categories cannot be upheld. In addition, the conception of an affective atmosphere sets out the ‘unfinished’ nature of beings.

Atmospheres are unfinished in that they constitute a basis for sensed experiences of other bodies, which in turn impact on atmospheres (Anderson, 2009).

With regard to this thesis, the conception of capacities as the effects of a multitude of minute affections implies that human beings are neither finished nor self-contained. As these affections by human and non-human beings occur through encounters, prisoners, perpetrators, lawyers and their capacities, then, are situated in events. They are in-relations and affect each other continuously.

3.1.2 The Importance of the Milieu

In this subsection, I describe Simondon’s (2009b) concept of individuation in order to enrich the Deleuzian-Spinozist approach. Simondon’s (2009b) concept emphasises the processuality of beings and the importance of internal and external milieu. While described differently, for both Spinoza and Simondon, beings cannot exist separately from their milieu. For Spinoza, beings are “a tiny part of nature whose character one both constitutes and shares” (Sharp 2009, 93). For Simondon, the relationality of beings also implies the impossibility of separating being from their milieu (Sauvagnargues, 2012; Scott, 2014; Simondon, 2009a). Non- representational researchers increasingly turn to Simondon to emphasise the co- constitution of beings and their milieu (Iliadis 2013; Lapworth 2015b; Manning

2013). For example, Erin Manning (2013, 30) describes the body as

“transindividuation” and as a “resonant materiality”, to highlight its continual

109 exchange with its milieu; whereas Andrew Iliadis (2013, 18) argues that

Simondon’s concept of individuation bypasses the “subject-object deadlock”.

The concept of individuation emphasises that beings are continuously evolving, rather than having a finished status. Living beings are constituted by a twofold and interdependent individuation with an interior (psychic) and exterior

(collective) milieu (Iliadis 2013; Sauvagnargues 2012; Simondon 2009b). The psychic individuation denotes the solving of an ‘internal’ tension (Sauvagnargues,

2012; Scott, 2014; Simondon, 2009b). In contrast, collective individuation depicts the resolution of tensions between internal and external forces (Sauvagnargues,

2012; Scott, 2014; Simondon, 2009b). Simondon (2009b) points out that the collective individuation resolves an individual tension. For instance, he explains that emotions are psychic individuations and yet require an external milieu. They are exchanges between the subject and its material and immaterial milieu, which re-structure the individual (Scott, 2014). As Susan Ruddick (2010) points out, there is no mirroring between the collective social and the individual, but simply individuation. This conception implies that the social collectivity is always already operating within and on human beings (Ruddick 2010). In this sense, the subject is always in some sense collective (Scott, 2014); it is more-than-individual (Scott,

2014).

Relations, then, are the very mode of existence of being (Simondon 2009b).

This relationality implies an openness for interactions and thus the potential for change (Massumi 2002). The concept of individuation highlights the tensions that constitute beings, in the sense that they are in continuous co-constitution with their milieu (Sauvagnargues, 2012; Scott, 2014; Simondon, 2009b); there is always

110 potential for further individuation (Simondon 2009b). Simondon (2009b, 5) explains that “even after individuation, [the individual] does not exist on its own, because individuation does not exhaust with one stroke the potentials” for individuation.

All beings are trans-individual, in that they are co-constituted with their milieu; they are unfinished and in ongoing individuation. The concept of the trans- individual highlights that beings are balances of tensions (Manning 2013;

Simondon 2009b). The term trans-individual brings together the interior (psychic) and exterior (collective), which are separated by a membrane (Scott, 2014). Scott

(2014) explains that this membrane protects the ‘interior’ from too many stimuli, because tensions threaten the individual. When the threshold is reached, a novel individuation is triggered (Scott, 2014). This implies that at any time in any living individual there are perpetual and multiple individuations ongoing. In other words, beings are becoming (Scott, 2014; Simondon, 2009b). As Sharp (2011, 36) points out:

Being is a system of relations that is excessive, always

incomplete and uncompleted, and perpetually

differentiating. It is not a unity because it is

‘supersaturated,’ replete with energetic force that is

composing and recomposing in new forms, in response to

new tensions, at all times.

111 Most importantly, the solutions to the individuals’ tensions come through the milieu (Manning 2013; Sauvagnargues 2016). Encounters in form of bodies and ideas are essential in triggering continuously new processes of individuation.

As Simondon (2009b, 5) stresses, “that which the individuation makes appear is not only the individual, but also the pair individual-environment”. Simondon’s concept of individuation thus highlights the mutually constitutive nature of the material and immaterial milieu and the individual being (Iliadis, 2013;

Sauvagnargues, 2012; Scott, 2014). Individuals are always the effects of, and thus never pre-existing, individuation processes (Manning 2013).

Another useful Simondonian concept is metastability as a temporary balancing of disparities, which allows describing the transformations of beings, despite their seeming obstinacy. Disparity denotes the irreducible combination of entities (Sauvagnargues 2012). This concept of disparity emphasises that individuation is creative; it creates a third entity, which reverberates upon its composing entities (Sauvagnargues 2012). A good example is depth-vision. As

Sauvagnargues explains “disparation refers to the production of depth in binocular vision and describes the incompatibility of retinal images, the irreducible disparity between the images that produces three-dimensional vision as a creative solution.”

That is, the individual eyes’ images remain distinct (Scott, 2014). The implication, in Simondon’s (2009b, 5) words, is that “[i]ndividuation must therefore be considered as a partial and relative resolution.”

It is in this sense, that life or living amplifies problems and that life is a rescue from fixity (Scott, 2014). Metastability, then, is useful to understand the tension between ‘stability’ and ‘change’ (Iliadis 2013). The idea of metastability

112 allows a conceptualisation of prisoners and other human beings as experiencing perpetual affections, which threaten and stabilise their momentary being (Iliadis

2013; Sauvagnargues 2012). They are continuously balancing tensions, rather than being their resolutions (Scott, 2014; Simondon, 2009b). Metastability is not a stable equilibrium, because a stable equilibrium denotes the “lowest level of potential energy”(Simondon 2009b, 6). In a stable equilibrium all potential for further co-constitution processes has already been actualised (Simondon 2009b).

The concept of metastability thus highlights the temporality of beings as they are constantly balancing multiple sub-equilibriums. Importantly, it also highlights the need for a milieu that allows for balancing these equilibriums and that sustains the required, continuous individuations (Simondon 2009b).

Consequently, Simondon’s concept of individuation stresses that living beings are defined by constant transformation. They are made of previous and ongoing individuations and are thus neither free nor pre-determined. Living is problematic, because living means constant individuation in order to persevere

(Sauvagnargues 2012; Sharp 2011; Simondon 2009b). In Simondon’s (2009b, 7) words, life is “perpetuated individuation, […] according to the fundamental mode of becoming”. The individuation of a living being is never exhausted, because it “is not a unity, because it is ‘supersaturated,’ replete with energetic force that is composing and recomposing in new forms, in response to new tensions, at all times” (Sharp 2011, 36).

With an eye to analysing extraordinary rendition, the significance of combining a Deleuzian-Spinozist approach with Simondon’s individuation concept is to emphasise the processuality of beings. Beings can never be one; they only

113 ever exist in relation to others (Scott, 2014). Human and non-human beings are not only in continuous co-constitution with their external milieu but also with their internal milieu. The interdependent internal and external individuations are only analytically distinguishable. The concept of individuation allows grasping prisoners and perpetrators as coagulations of internal and external forces. That is, they are continuously affected by interior and exterior human and non-human beings that exercise disparate power on them and at the same time shape them and their capacities. Most importantly, human beings’ subjectivity is processual and emerges only after psychic and collective individuation (Scott, 2014). The implication is that the prisoners’ capacities to resist and perpetrators’ capacities for responsibility continuously evolve and are effects of ongoing affections through their internal and external milieus.

Conceptualising the metastability of human beings and their selves has encountered criticisms. Two criticisms with regard to a Deleuzian, non- representational, and micropolitical approach are presented here. This allows me to depict my approach in more detail and to hint at the insights it provides on extraordinary rendition. A first issue concerns the evolving human being and its self. While a given conception of what constitutes human beings is increasingly challenged, the fragmented and ‘insecure’ bodies and selves of human beings are often viewed as a threat (Philo 2014a). For instance, Chris Philo (2014a, 286) points out that the cultural turn has led to the acknowledgment that “identities serve as the connective sinew between senses of self (who am I? what is my ‘place’ in the world?) and senses of shared collectivity with larger groupings of selves

(communities, nations, identity affiliations of all sorts).” This recognition of the

114 “dispersed” human being allows drawing attention to the “microphysics of power”

(Philo 2014b, 499). Yet, Philo (2014a, 288) assesses that there is a “mounting insecurity about what it is to be human and to survive as humanity on this planet”.

He pictures mainly the dangerous and negative aspects of this conception and deplores that there is no secure entity about which knowledge can be generated. In his (2014a, 287) view, this conception of human beings constitutes a “presentist and doom-mongering” narrative. Despite these concerns, Philo (2014a, 288) also sees the potential of such ‘insecure’ bodies and selves in that they “convey the creative ways in which insecurities might be faced down” (2014a, 288). The point here is that affirming the evolving, ‘insecure’ bodies and selves, are means to potentialise the human beings, their selves, and their capacities.

A second issue raised concerns the idea of affirming life, which non- representational theories put to the fore (Anderson and Harrison 2010). For instance, Paul Harrison (2015, 285) is concerned with the idea that “life is not innocent, that any affirmation always contains a disavowal, and that we are, whether we like it or not, always bound up in structures of sacrifice”. Harrison

(2015) erroneously interprets Elizabeth Grosz (2017) delineation of ‘amor fati’, affirming life, to leave out suffering. Affirming life, however, means to embrace that one is constituted by multiple human and non-human beings; one is not given but affected by multiple forces (Grosz 2017). Affirming life is about “understanding one’s place in the universe, as bound up as it is with one’s own forces and the forces of the world, forces one cannot control but whose internal effects constitute who and how we become” (Grosz 2017, 122). What is needed is a greater sensitivity towards these human and non-human beings constituting ‘us’. Grosz’s

115 (2017, 114) point is to understand “both good and bad ‘luck’ as equal stimuli for action.” In other words, affirming life does not deny suffering, instead it emphasises how all forces, even ‘negative’ sufferings, open novel ways to become active. Affirming life means finding always novel ways of relating. With regard to extraordinary rendition, then, affirming life means, for instance, finding novel ways for prisoners to constitute their selves.

In addition, Harrison (2015) is wary of the implication of affirming life in that it would allow for humanitarian interventions. The caution towards affirming life is visible in debates about responsibility I have sketched in Chapter 1. In particular the conception of responsibility as individual responsibility

(“responsibilisation” (Laliberté 2015, 62)) draws attention to the individuals as

“’empowered’ to be active agents claiming their rights” (Laliberté 2015, 62). This focus tends to leave out the “[i]nstitutional and collective responsibilities for addressing risk” (Laliberté 2015, 62); they “are left obscured and underinterrogated” (Laliberté 2015, 62) by individualising responsibility. Laliberté

(2015) deplores that the conceptions of responsibility as responsibility to protect and as responsibilisation miss the aspect of negotiation. In the conception of responsibility as responsibility to protect, the international community as a collective has to ensure that Human Rights are upheld across the globe. These conceptions open the door to violent humanitarian interventions, she points out.

Similarly, Noxolo, Raghuram, and Madge (2011, 421–22) draw attention to the problematic relationship between responsibility and humanitarian interventions:

116 it is the possibility of extending the state of exception to

large parts of the world, places that are outside the ambit of

responsibility or indeed where responsible action is

constituted through these exceptions (Duffield 2007), that

can make responsibility suspect as an ethical gesture.

The Deleuzian-Spinozist suggestion to affirm life, however, does in no way denigrate the violence of life. Affections and encounters are violent disruptions of beings and, importantly, affect the beings on both sides of the relation. At the example of a human being ingesting arsenic, Deleuze points out that, while the human being is being decomposed, potentially up to its death, the arsenic experiences a composing affection.

Furthermore, the re-formulation and potentialisation of human beings and their selves that this thesis suggests, does not dispute the relevance of the collective. On the contrary, the thesis sets out responsibility as a capacity constituted by individual as well as collective forces. It conceptualises human beings, their capacities, and their selves as unfinished and evolving. “Simply put a life is not the life of an already constituted individual or subject; a life is made up of singularities [...] and the possibility of the particular identification that enable us to say ‘we’ or ‘I’. Just as all beginnings are imaginary so are all identifications”

(Anderson and Harrison 2010, 13).

A non-representational theory involves two crucial points: “a commitment to an expanded social including all manner of material bodies” and “an attention to relations and being-in-relation”, as Anderson and Harrison (2010, 13) emphasise.

117 “Humans, their desires and plans, are clearly not the only things active in the world, in fact often we may be very small players in much bigger trans- and non- human systems and complexes” (Anderson and Harrison 2010, 12). Such an approach “does not limit a priori what kind of beings make up the social. Rather everything takes-part and in taking-part, takes-place: everything happens, everything acts” (Anderson and Harrison 2010, 14).

In conclusion, a Deleuzian non-representational approach, drawing on

Spinoza and Simondon, highlights the minute, day-to-day, intentional and non- intentional affections extraordinary rendition induces in the actors involved. I suggest that outlining extraordinary rendition’s minute functioning draws out the forces shaping it and so this approach opens up spaces of intervention.

Potentialising beings is important and allows going beyond the common interpretation that extraordinary rendition is enabled by a wilful manipulation of the law. Instead, this approach stresses that both human and non-human beings are constituted complexes in a process of constant transformation. With regard to extraordinary rendition, then, the implication is that judicial proceedings and human beings are metastable: they not only transform but they are also constituted by internal and external tensions yet to be resolved, which push toward new individuations. Specifically with regard to prisoners and perpetrators, this approach renders visible the multiple, minute, and constant variations in the capacities of their bodies and thoughts.

Together, Deleuze, Spinoza, and Simondon ultimately dethrone human beings’ intentions and their consciousness. Thinking through them draws attention to the multiple forces that constitute human and non-human beings and emphasise

118 that the human mind is only one force amongst many (Sharp 2007). The aim here is to “destabilise the monopoly of the human agent within its material environments” and “to explore our implication within ‘nonhuman’ material forces”

(Roberts 2012, 2513). It is a question of taking the influence of human and non- human actors alike into account (Anderson 2009; Anderson and Wylie 2009). For, the body is filled with the force of life; it is always more than one (Manning 2013).

This materialist way of approaching things re-thinks bodily sensitivity without dismissing the mental doubling. Matter is more than a “prosthetic tool for human agency”, rather “a ‘thing’ capable of acting on its own terms”, Tom Roberts (2012,

2516) explains.

Seen through an affective lens, then, novelty resides in any situation and has a thick potentiality (Sharpe, Dewsbury, and Hynes 2014). Manning (2013, 24) explains that creativity “is the capacity of an event to activate certain vectors otherwise backgrounded”. Novelty is not a break with the past nor a transformation, but rather an “incessant alertness to the functioning of the new”

(Sharpe, Dewsbury, and Hynes 2014, 121). That is, creativity and change emerge not solely from the subject’s intentions (Roberts 2012). As Roberts (2012, 2526) explicates, change occurs “through subtle recompositions of affective capacities.”

Political concepts and ways of thinking are not unchangeable givens, but are brought into existence (Sharpe, Dewsbury, and Hynes 2014). Consequently, there is a need for developing new political sensitivities (Sharp 2009; Sharpe, Dewsbury, and Hynes 2014).

Conceptualising these transformations explicates the seeming stability and possible change in judicial proceedings and human beings. It opens up a path to

119 counter the lack of responsibility in extraordinary rendition by emphasising the importance of cultivating habits of evaluation internally in terms of the human being’s mode of existence and externally in terms of a milieu that promotes individual responsibility.

3.2 Creativity of Judicial Proceedings

In this section, I set out the creativity of judicial proceedings, because asserting extraordinary rendition’s illegality has not stopped some people engaging in it and there seem to be few consequences for those who have engaged in it, in terms of responsibility. Judicial proceedings rely on judicial structures and litigating actors. Judicial structures set out a matrix of territory, subject status and legal orders producing the place of offences, the subject status of perpetrators and prisoners as well as the applicability of laws and the categorisation of offences

(Interviewee A 2014; Interviewee B 2014; Sassen 2008). Thereby, jurisdiction differentiates legal orders and allocates them a ‘place’ and ‘objects of concern’

(Valverde 2009). Judicial proceedings are conventionally depicted as institutionalised discursive practices that are suffused with state power and based on the practice of categorisation (Delaney 2001). Judicial proceedings are commonly understood to subsume specific cases under pre-given legal orders,

Lefebvre (2008) and Mussawir (2011) deplore. Accordingly, judicial structures are thought to set out distinct and separated territories, controlled by a single authority, which enforces a given legal order.

The Deleuzian, non-representational, and micropolitical approach I have been setting out enables us to understand judicial proceedings as creative

120 performances, rather than simple cases of subsumption under law. In what follows, I draw out the intricate re-performance and the complex co-constitution of the places of offence, subject status of perpetrators, and prisoners’ rights. I argue that this approach highlights that the very conceptions of place, subject status and offence are complexes, constituted through multiple actors’ performances and transforming. The issue with assuming given categories is that they obfuscate the potential for change. For instance, the category of torture obfuscates the multiple decreasing effects that humane treatment can have on prisoners. Yet, as Human

Rights lawyer Interviewee F (2016) noticed, some of her clients who were not tortured were still suffering from PTSD.

Judicial proceedings are creative in that the spaces of law that they constitute are not pre-given nor clearly demarcated. To recall Chapter 2, previous research draws out the moral and legal horror of the “calculated withdrawal of subjecthood from” prisoners (Gregory 2006, 415). Yet, I suggest that the conception of the subject status and its rights is problematic. The idea of ‘stripping away rights’ relies on an inadequate conception of the rights and subject status of human beings. The concept of right-less prisoners further raises the questions of who is recognised as a human being and what the supposedly inherent and pre- given rights of human beings are. On a similar note, the concept of spaces of law suspension is inadequate, because it does not conceptualise the transformations and thus the potential for macro change of legal orders and territory.

I suggest that judicial structures do not simply posit nor address what is legal or illegal. Asserting responsibility is not merely a question of clarifying the ambiguity of territory, subject status, or legal order. As Elden (2013a) suggests, the

121 notion of territory is constitutively ambiguous. The notion of controlling authority is problematic, as Agnew (2005) and others demonstrate, while others have noted the limitations of Western ideals of Human Rights (Zevnik 2011). This thesis does not dispute the horror of, nor the merits of exposing what constitutes bare life; rather it demonstrates that judicial structures undergo micropolitical processes of transformation, and this signals a potential for novelty arising from the performance and re-performance of places, subject status and legal orders.

I argue that judicial structures affect judicial proceedings by drawing on

Mussawir (2010a, 2010b, 2011). He (2010b, 466) is critical of the conventional conception of judicial proceedings as a process of subsumption for its implied fixity, suggesting that judicial procedures “do more than manage the functioning of a justice system”. Procedures “describe forms and structures through which particular logics of judgment come to be performed” (Mussawir 2010b, 466).

Mussawir (2010b) points out that the separation of the law’s performance and content obscure their co-constitution. He (2010b, 470) explicates that it is

“judgment itself which constitutes the invention of a particular style of existing, a particular arrangement of forces, a ‘machinic assemblage’ of desire and expression”.

Similarly, Lefebvre (2008) emphasises the advantage of a Deleuzian approach to break up categories and to conceptualise the creativity of judicial proceedings. He argues that if we start from recognised categories, then cases are always already pre-selected by the law in that an object can only appear to us insofar as we have a concept of it (Lefebvre, 2008). Consequently, cases would always be already mediated by law: “cases do not stand externally or indifferently

122 before a judge” (Lefebvre, 2008, 7). Yet, Lefebvre emphasises the creativity of judgement in that “judgment actualizes precedents and rules in a unique arrangement. […] judgment actualizes a multiple of past rules towards the determination of its own unique and unprecedented juridical problem. […] a judgment combines rules into a unique collection or assemblage” (Lefebvre, 2008,

189). Judgement as the verdict of judicial proceedings is creative, because

“[t]hanks to the encounter, judgment will create or produce a unique product, an unprecedented composite of recollections and perceptions” (Lefebvre, 2008, 184).

Lefebvre (2008, 213) explains that overlooking the creativity of judicial proceedings results in the impression that novelty “appears as either an accident or an abuse; in any case, it is a misapprehension of law”. He stresses that “even the most sterile habitual repetition always involves a (however minimal) modification to its instatiation” (2008, 188) and explains that “[c]ases simultaneously introduce exteriority into the law and serve as the germ from which law begins” (2008, 59).

Lefebvre (2008, 59) concludes that cases force the law “into action and invention”.

In other words, creativity resides in relations: “there is an experience and a duration of judgment, wherein a new rule is created piece by piece as its various elements or components are actualized into unprecedented relationships”

(Lefebvre, 2008, 216). To put it in Franz Kafka’s words, “[t]he judgment isn’t simply deliberate at some point; the proceedings gradually merge into the judgment” (cited by Lefebvre, 2008, 194).

A micropolitical approach reconceptualises the enactment of judicial structures through various actors’ feelings, thoughts, and acts. My approach emphasises that territory, responsible perpetrators, and prisoners’ rights are not

123 once and for all achieved. Instead, each judicial proceeding re-actualises meanings, contents and the reach of jurisdiction. This approach explicates how places, laws, people and their rights undergo micropolitical transformations with a potential for macropolitical change, and yet, that they cannot simply be changed at a whim: while transformations are constant, there is more to change than intentionally.

Previous geographical studies have provided important insights into the intricate co-constitution of territory, subject status, and legal order. Importantly, legal geographers have demonstrated that law and space are constituted, maintained, and reproduced through social practices and thus are the result of social relations (Akinwumi 2012; Martin, Scherr, and City 2010). That is, they have outlined the spatiality of legal orders and that legal orders are not independent from society (Blomley 2003). The example of citizenship below ties the aspects of territory, subject status, and legal order together and exemplifies their complex interdependency. For example, Mountz (2013) explains that the changed conception of territorial sovereignty has led to the increasing problematisation of the conceptions of law and citizenship. Citizenship has received increased attention in the form of performing degrees of citizenship (Mountz 2013; Mountz et al. 2012), multiple citizenships (Agnew 2005), citizenship at different state levels (Butler 2009; Hubbard 2013), and citizenship as (political) participation

(Arendt 2007a, 2007b). Citizenship has further been problematised in relation to migration (Levy and Sznaider 2006; Mountz 2013; Raustiala 2005), sovereignty

(Agnew 2005; Mountz 2013; Skelcher 2005; Zaum 2007), Human Rights (Darian-

Smith and Scott 2014; Levy and Sznaider 2006), legitimacy (Skelcher 2005), and statelessness (Arendt 1964). For instance, Phil Hubbard (2013) analyses how

124 different spaces affect rights: citizenship rights might be secured at the national level but threatened, undermined or overridden by laws at lesser scales (Hubbard

2013). Municipal laws are concerned with everyday uses and occupations, rather than with abstract claims of Human Rights, in such a way that potential for conflict in the rights’ implementations arises (Hubbard 2013). Hubbard (2013) analyses the conflict between the landlord’s duty to ensure orderliness on his premise, without discriminating against groups of people. Previous geographical studies emphasising the production of spaces of law have contributed in three major ways to re-thinking the complexity of spaces of laws (Blandy and Sibley 2010; Blomley

2003; Vaughan-Williams 2008): the spatiality of legal orders, the conception of territorial integrity and the production of legal subjects.

The recently emerged branch of Legal Geography aims to set out how legal orders create spaces and how spatial relations affect the law (Akinwumi 2012).

Legal Geography studies depict the complex co-constitution of territory and legal orders. Their analyses focus on legal actions in public spaces and on mapping legal meaning to material landscapes (Martin, Scherr, and City 2010). For example,

Martin et al. (2010) explain that places are produced in and through law, while

Chris Butler (2009) stresses that the law is both an ideological representation of space and a material practice to maintain social order. Boundaries have a spatial and a legal meaning that affects the individuals, who in turn re-produce these meanings (Blandy and Sibley 2010). Legal geographers explain that boundaries separate spaces and create an exteriority to law (Blandy and Sibley 2010). Sarah

Blandy and David Sibley (2010) explicate that the spatial grid defines spaces in which we move, reflect, and reinforce social relations of power, which in turn

125 enable and prohibit certain behaviours in certain places. For example, Blomley

(2003) illustrates that the concept of property is simultaneously a legal and a spatial concept that needs to be enacted. Thereby, fences are one way of disciplining both space and property (Blomley 2003). These studies emphasise that distinctions in terms of boundaries create and maintain different spaces of law

(Blandy and Sibley 2010). Consequently, distinguishing spaces produces homogenised parcels of space. Put differently, legal geographers explain and emphasise that these boundaries constitute different spaces of law. Importantly,

Elden (2009) points out that the contemporary significance of boundaries in terms of their political, and not just their economic and strategic, meaning could only emerge from a very specific notion of spaces and their measurement. As Vaughan-

Williams (2008) explains, state borders are the spaces in which individuals are categorised as nationals, stateless, refugees, foreigners, aliens, and so on. Similarly,

Mountz et al. (2012) explain that detention practices are processes in which borders are re-imagined and transformed.

The law conjures meanings for spaces on either sides of boundaries (Barkan

2011; Blandy and Sibley 2010). Applying the law creates zones of exclusion for particular individuals, groups, or behaviours (Blandy and Sibley 2010). As Joshua

Barkan (2011) explains, the law affects spaces by creating delimited spaces of inclusion and exclusion and by creating uneven spatialities through zones of exceptions, such as trading zones with legal privileges. Thus, the law applies not just to a delimited space, but creates boundaries and orders political life (Barkan

2011). The law posits physical borders through spatialisation strategies, which result in differential law. Or as Simon Dalby (2007) points out, dividing the world

126 in two morally loaded categories legitimises, even demands, interventions.

Furthermore, these studies point out the violence of this co-constitution of law and space. Blomley (2003) prominently emphasises the violence of law’s inclusion and exclusion mechanisms. He argues that the law necessitates an outside from which it can set itself apart. Law draws the attention away from its own violence by pointing to the exterior violence, which it aims at containing (Blomley 2003;

Delaney 2001; Vaughan-Williams 2008). Blomley (2003) thus concludes that violence is inherent to law.

A second major contribution that geographical studies provide is the problematisation of the concept of territorial integrity (Agnew 2005; Elden 2009).

Most notably, Elden (2009) explains that territorial integrity denotes the supposedly intrinsic relationship between territory and sovereignty. Territorial integrity is constituted by territorial preservation and territorial sovereignty

(Elden 2007, 2009). Elden (2009) explains that out of these aspects of territorial preservation and sovereignty results the necessary fiction that states are in control and exercise sovereignty evenly over their entire territory. By problematising the notion of territorial integrity, scholars in geography have contributed to the problematisation of the concept of authority over a territory (Agnew 2005; Elden

2009). The common conception of territorial states as ‘containers’ (see Taylor

2003) implies that these containers can leak danger (Agnew 1994). That is, danger spreads out towards other regions: “[a] state that is not in full control of its territory can lead to impacts beyond those boundaries” (Elden 2009, 64). This conception enables interventions into other countries in order to protect the state’s own citizens against threats of terrorism (Elden 2009). The humanitarian

127 principles led to a re-thinking of territorial integrity or, more precisely, to the question of exclusive internal sovereignty (Elden 2009). As Agnew (2005) shows, the very conception of authority and sovereignty as absolute authority are problematic.

A third major contribution concerns the understanding of the production of the subject status through judicial proceedings (Hubbard, 2013; Lefebvre, 2006;

Mussawir, 2011). Scholars increasingly recognise and argue that the law produces subjects status, such as citizenship and bare life (Gregory, 2006; Rose & Valverde,

1998; Zevnik, 2013). Nikolas Rose and Mariana Valverde (1998) affirm that the law creates subjects that are individual, autonomous, possessive, self-responsible, and right-bearing. They emphasise that the human being is subjectified by many forces from inside as well as outside the legal context and exemplify this with , affirming criminal law’s differential treatment of man, woman and child, based upon biology and psychology. Other forms of subjectification include race, genetics, moral and theological convictions as well as policy concerns (Rose &

Valverde, 1998). They conclude that the law is not creating one but multiple, mobile, hybrid and transforming subjects. On a similar note, Zevnik (2013) shows that laws and their prescribing limitations are internalised and frame the individual psyche. The law is not only based on concepts but also creates concepts

(Zevnik 2013). Zevnik (2013) points out that categories, such as the very category of the human being, creates forms of being and precludes others. She further emphasises the violence of the change from one status to another:

128 The becoming of the subject of law is a reductionist and a

violent operation as it closes down the specter of forms in

which being could emerge. The subject is only one

representation of being, one fixation of identity, and one

juridical form of existence. Allan Pottage, for example,

writes that, ‘these juridical categories are not only cognitive

categories – ways of knowing the world – but also

existential categories – ways of being in the world. […]’

(Zevnik, 2013, no pagination).

Deleuze too problematises the subject status and the universality of Human

Rights, insisting on their situational nature. What is deemed a ‘natural human right’ is the result of multiple actors’ feelings, thoughts and actions. Or, as Deleuze puts it, “[h]uman rights, [...] what is that? It’s pure abstraction, it’s, it’s empty. […] justice, it doesn’t exist, human rights, they don’t exist. What counts is jurisprudence. That’s the invention of rights” (Lefebvre, 2008, 54). Lefebvre

(2008) explains that this quote of Deleuze posits that rights do not make sense outside a concrete situation. It further explains Deleuze’s aversion towards judgement but not jurisprudence, as “jurisprudence operates within a social field to resolve specific problems and create rights” (Lefebvre, 2008, 55). That is, judicial proceedings create rights within concrete situations.

In more general terms, Zevnik (2011) hints at the importance of challenging existing categories. Starting from categories is inadequate, because, as Zevnik

(2011, 164) explains in the context of Gitmo prisoners, their subject status in itself

129 has no value: “[n]othing sacred came from one’s ‘belonging’ to human beings; in fact, one is better off by becoming something else”. Zevnik goes on to suggest that one should be “constantly changing one’s existence in ways which challenge or resist being captured by law” (Zevnik 2011, 164). Viewing beings, subject status, and rights not as produced but rather as re-performed, thus bearing the potential for change, I challenge the view that any form of being, is ‘due something naturally’.

The re-formulation of human beings as transforming complexes eludes to the problematic subject status of human beings. On both sides of the moral divide regarding extraordinary rendition, Human Rights activists and perpetrators re- phrase and re-present prisoners in such a way as to render them recognisable as human subjects or respectively, to render their humanity unrecognisable. I argue that it is important to understand the transformative aspect of both human beings and the subject status in order to avoid restrictive questions, such as who is recognised as a human being? Or, are enemy combatants human beings? And if they are, what rights do they have? These restrictive questions close down the potential for novelty: whatever definition one uses for humanity or human beings, one only expands the idea of ‘the human’ which still requires recognition (Sharp

2011). The concept of humanity is thus always restricted and never fully encompassing (Sharp 2011). In sum, the conception of human beings and their subject status affects judicial proceedings in terms of the subject status of both prisoners and perpetrators.

130 3.3 The Creativity of Human Beings

In this section, I argue that the common conception of the human being is inadequate, because it does not draw out its co-constitution with the milieu. I suggest that human beings experience constant affections, which constitute them and always affect both body and mind in parallel (Spinoza 1994). This re- conceptualisation explicates that prisoners experience multiple affections due to their complex compositions (Deleuze 1988b). These affections are particular to each individual in that they depend on the individual’s bodily and mental dispositions (Anderson, 2014; Sharp, 2011; Sharpe et al., 2014). This section focuses on the complex composition of human beings, while I develop in detail the implications for the mental capacities in the next chapter.

Human beings are complex compositions of infinitely many subbodies. In

Sharp’s (2011, 98–99) words, “[t]he richness of the human body consists in the diversity of its components, which enables us to relate to a great variety of other beings”. She (2011, 38) cites “our cells and organs, the various microorganisms that live on our skin and within our intestines, without which our bodies could not persevere as the bodies that they are”. Then, she (2011, 38) points out that these

“microorganisms do not strive to be in order that we may live—their being is not a function of ours—but we form a composition with them, and thus our bodies and theirs persevere”. Bodies are not distinguished by their parts (Spinoza 1994); that is, if a subbody is lost or gained but the relations of the whole body persist, then the individual is seen as persisting or progressing (Spinoza 1994). This is important, because, as Sharp (2011) stresses, to persevere, bodies need to transform and the more complex a body is the more transformation it requires. For

131 example, living beings have to breathe: in her (2005, 595) words, “human modes, for example, are constantly exchanging parts of their bodies with the atmosphere in order to breathe”. Likewise, human beings eat to persevere. Returning to the example of eating an apple, this implies that if a human being is strongly allergic to apples, it might decompose the human being and potentially lead to its death, though eating an apple would in normal circumstances not have this effect, though it may, as I suggest in Chapter 5, have other unpredictable effects. We do not have a body, but are in the constant process of embodiment (Macpherson 2010). A body is always amidst the push and pull forces of its milieu: “[t]he full viscerality of a body submerged in the push and pull of its material milieu always escapes representation” (Dewsbury et al. 2002, 437). Or as Manning (2013) explains, the body never is, instead it is becoming. There are always several and overlapping individuations ongoing (Manning 2013). Thus, the conception of an infinity of subbodies composing human beings implies that a body is in processes of constant and tiny variations (Deleuze 1978b).

This re-formulation further draws out the richness of sensations beyond the traditional five senses that beings experience. Human beings are affected by more than the traditional five senses of hearing, smelling, seeing, tasting, and touching; instead, the whole body is a sensory surface experiencing affections (Paterson

2009; Sheets-Johnstone 2012; Swirski 2013). The body and its multiple parts are affected by multiple sensations that intermingle and are indistinguishable from one another (Paterson 2009). The complexity of human bodies has increasingly been recognised and with it, the multiple sensory capacities of bodies (Swirski

2013). For instance, scholars promote the analysis of somatic senses and affections

132 spread all across the interior and exterior body (Paterson 2009; Sheets-Johnstone

2012; Swirski 2013). Affections of the body, then, are multiple and exceed categorisation (Deleuze 1978b). Spinoza (1994) explains that individuals can be affected in many ways, because each body is constituted by an infinity of subbodies. For example, human beings have arms, legs and ankles as well as internal bodies, such as the stomach or bladder. To conceptualise bodies as composites of subbodies highlights that bodies are constantly affected by other bodies, but also, by their own. (Deleuze 1988b; Spinoza 1994). Most importantly,

Yeung and Somashekhar (2016) argue that sensations occur in daily experiences, through interactions with the world. Good examples for prisoners’ experiences of affections beyond the traditionally recognised senses are Hicks’ (2010) sensing of humidity and El-Masri (2006) sensing the warmth of Afghanistan.

Spinoza’s concept of parallelism sees the human mind as capable of many affections, because the human body is a complex composite (Spinoza 1994). The body is the constituting idea of the mind, because sensations are always doubled by a mental idea (Deleuze 1988b; Sharp 2009; Spinoza 1994). The mind imagines the existence of external bodies affecting its body and its thoughts (Deleuze 1988b;

Spinoza 1994); put differently, the mind’s primary concern is its own body and only secondarily the other body (Deleuze 1988b; Spinoza 1994). To have an idea of one’s body, implies an idea of what constitutes one’s body and what induces an increase or decrease of power (Spinoza 1994). These ideas or ‘understanding’, however, are not necessarily conscious (Deleuze 1988b; Sharp 2011). As Sharp

(2011, 63) points out, every human and non-human being “be they rocks, cars, birds, or chewing gum” has an extension and idea. The beings’ different bodily

133 capacities to affect and to be affected imply different capacities of the mind to form thoughts (Sharp 2011). That is, the difference between the beings of rocks and human individuals is qualitative, rather than in kind (Deleuze 1988b; Sharp 2011).

This Deleuzian approach re-conceptualises human beings as relational and so highlights that human beings are constantly affected by their milieu. This is relevant, for it implies that in extraordinary rendition there are no finished or authentic human beings, but constantly transforming and potentially changing prisoners and perpetrators (Deleuze 1978b; Sharp 2007, 2009). To exist means to affect others and to be affected by others in terms of bodies and ideas (Deleuze

1978b; Sharp 2009; Spinoza 1994). Human beings are relational effects of encounters (Lapworth 2015a) and in constant co-constitution processes with their milieu (Scott, 2014; Simondon, 2009b). The implication is that bodies and minds are constantly subjected to forces that compose and decompose them (Deleuze

1978b, 1988b; Sharp 2011). In Sharp’s (2011, 26) words:

finite beings enhance and diminish one another’s power

necessarily, by virtue of their inescapable interdependency.

An affect is an encounter between bodies that involves a

change in one’s power, for better or for worse, together

with an idea of that change.

There is an important distinction between affect and affections, raised above with respect to the question of the translation of Spinozan terms. With regard to my thesis, it should be noted that the idea of affect refers to the passage

134 between states, whereas affections are the traces left on beings (Deleuze 1978b,

1998); they are effects of increased or decreased power of action (Deleuze 1978b,

1998). Affect becomes actualised into a specific and restricted affection and so becomes an object among others (Massumi 2005). As Massumi (1995) explains, affections are measurable, qualified, restricted, rationalised, and subjective in content. In contrast, affect lies beneath consciousness, because it is too rich and too complex to be represented (Massumi 2005). Importantly, affect is accompanied by a virtual complex of potentials that can generate differences and divergences in what becomes actualised, as Anderson (2006) points out. The issue with equating affect and affections lies in fixing and thus reducing affect to a specific actualisation. Sensations and emotions are products of actualisations and thus can never incorporate the whole potential of affect (Anderson, 2006). In sum, I distinguish between affect as a force and passage, whereas sensations and ideas describe particular affections of respectively the body and the mind.10 Affect is not reducible to sensations or mental thoughts.

A being’s capacities to affect and be affected is always particular. Affections constitute and express a beings’ momentary power of action (Deleuze 1978a,

1978b; Sharp 2011). No being is identical to another and no being stays the same, because it is the momentary result of multiple affections (Deleuze 1978b; Sharp

2011; Spinoza 1994). This allows conceptualising the differential effect of forms of torture on prisoners, as in the case of the diverse ways that prisoners are affected by music torture discussed in Chapter 5.

10 I use the term feeling as a synonym to affections. Moreover, I use sensation to refer primarily to the body and emotions to the mind, yet, they imply corroborating affections in the respective other.

135 Reducing bodies’ capacities implies reducing the capacities of the mind.

Human beings’ minds are complex compositions of connected ideas that exceed consciousness and intentionality (Deleuze 1988b; Sharp 2011; Spinoza 1994).

Furthermore, they require a fertile milieu to thrive (Sharp 2007, 2009). As Sharp

(2011, 85–86) highlights, both thinking and perception become less complex when body’s and mind’s capacities are reduced: “thinking, perceiving, and feeling are forces of nature that are more or less complex depending upon an individual’s ability to be affected and disposed in a great many ways (II p13s).” This conception is crucial in order to conceptualise the importance of constituting a fertile milieu for the increase of human beings’ capacities. It allows understanding the manipulation of prisoners’ mental capacities, especially with regard to techniques of affective deprivation.

While beings are transforming, they are not free-floating entities changing on a whim (Deleuze, 2001; Scott, 2014; Spinoza, 1994). In addition, and as explained above, the ideas’ connection depends upon bodily encounters in that the mind forms a coherent series of the ideas doubling bodily affections (Sharp 2011).

The minds’ idea connection is not free-floating, but builds upon ‘knowledge’ of its body (Deleuze 1988b). Or in Simondonian terms, human beings and milieu are metastable in that they are pre-structured and yet constantly transforming (Scott,

2014; Simondon, 2009a). There is not “only one possible way of individuating being” (Simondon 2009b, 13). Neither human beings nor their milieu pre-exist their perpetual co-constitution (Scott, 2014; Simondon, 2009a).

As Sharp (2009) suggests, self-knowledge and one’s appreciation of one’s power are never formed in isolation but are dependent upon the ‘collectivity’ of

136 encounters and milieus. Different encounters enable different thoughts (Sharp

2009). The continuous affections and thus the implied variations continuously enable and disable body and mind capacities (Deleuze 1988b; Kraftl and Adey

2008; Sharp 2011). ‘Negative’ affections, whether they originate in body or mind, decrease the power of action (Deleuze 1978a, 1978b, 1988b). Sharp (2011) emphasises that it is as important to combat decreasing ideas as combating bodily abuses, for the decrease affects always both bodily and mental capacities. In her

(2011, 76) words,

[t]he existence of ideas is determined by and dependent

upon the forces and strivings of other ideas, just like the

being of bodies. This is why freedom and power depend

upon caring for our minds as much as for our bodies.

With this in mind, I aim to re-conceptualise the way that the mind links ideas in order to draw out the importance of ‘exterior’ stimuli to gain knowledge.

Growth in ideas is further important for the re-formulation of the capacity to think and evaluate, which I describe in Chapter 4. Knowledge as mode of the mind exists in three different forms (Deleuze 1988b; Spinoza 1994). Of relevance here is the distinction between inadequate affection-ideas, which are partial and confused, and the adequate ideas of common notions understand cause-and-effect relations

(Deleuze 1988b; Spinoza 1994).

Affective knowledge is an inadequate but necessary form of knowledge, which knows “things only by their effects” (Deleuze, 1978b, no pagination) and

137 does not ‘know’ causes. This knowledge of effects is grounded in chance encounters and is contingent (Deleuze 1988b; Spinoza 1994). The issue with this form of knowledge is that where there is no knowledge of the cause, causation can be attributed to a contingent entity, as Ruddick (2010) stresses. Nevertheless, this affective knowledge is important, because the second level of knowledge develops upon it (Deleuze 1988b; Spinoza 1994).

This second level of knowledge, common notions, denotes an understanding of cause-and-effect relations and is concerned with the agreement or disagreement between bodies (Deleuze 1988b; Spinoza 1994). Or, as Deleuze (1978b) puts it, it is the knowledge of the effects that specific mixtures of bodies have. In a common notion, the two encountering bodies agree with each other and thus increase the power of action (Deleuze 1998). Common notions enable the seeking out of active affections (Deleuze 1978b), in contrast to being passively acted upon in the form of passions. Common notions are individual insofar as they are arrived at individually and are located within the individual (Deleuze 1978b) but also collective, as they are produced in relational encounters (Deleuze 1978b).

The important point here is that ideas are not freely connectable: ideas relate to how one’s body is affected by other bodies and other ideas (Deleuze

1988b; Spinoza 1994). Deleuze and Scott (2011) explain that inadequate ideas

(passions) constitute the basis of the mind, while, at the same time, reflections impose a rule of causality on these passively experienced affections. Moreover, the conception of a self gives consistency to the mind but at the same time limits it

(Deleuze and Scott 2011; Manning 2013).

138 With regard to extraordinary rendition, this aspect of ideal connections and of building knowledge point out that there are no given subjects that can be broken and that the minds’ capacities have to be cultivated. Truths are not inherently recognisable as such and have no special standing or power in- themselves (Sharp 2009). Instead, the strength of ideas results from their connections to other ideas, whereby the idea with more connections predominates

(Sharp 2007, 2009, 2011). In turn, ideas are weakened by competing ones (Sharp

2007, 2009). The conception of ideas’ connections is highly relevant with regard to manipulating prisoners, because it explicates that the “ideas that most occupy the mind are not necessarily the truest ideas but the ideas with the most life support, as it were, from fellow ideas” (Sharp 2011, 71). Prisoners’ minds are not fixed and thus cannot be broken. Yet, their minds are not free-floating and changeable at a whim either; instead, their minds are metastable (Simondon 2009b; Smith 2007).

This conception thus allows explicating how depriving prisoners of (exterior) stimuli affect their minds’ capacity to form ideas. The fewer connections ideas have, the easier it is to implement a novel, ‘untrue’ idea.

A Deleuzian-Spinozist approach explicates how decreasing affections divert one’s power of action to fight off negative effects, so that less power of action is left for acting (Deleuze 1978b). The power of action of a being describes the capacity to actively affect others and be affected, that is, to be the cause for actions or thoughts (Deleuze 1988b). Power of action is in constant variation insofar as beings’ capacities perpetually increase and decrease through encounters. Fixating power of action means that part of the power of action is used to avert the negative affections. As Deleuze (1978b, no pagination) explains, power of action is “no

139 longer at my disposal. [...] To ward off the thing is to prevent it from destroying my relations”. I quote Deleuze’s explanation of the effect of decreasing affections through diverting power of action to resolve tensions in length, for it is essential in understanding how an interrogation-torture responsive subject is formed:

What happens when I encounter a body whose relation

doesn’t compose with mine? Well there […] is like a kind of

fixation. […] That is, a part of my power is entirely devoted

to investing and to isolating the trace, on me, of the object

which doesn’t agree with me. […] Why? Evidently in order

to subtract it, to put it at a distance, to avert it. […] this

quantity of power that I’ve devoted to investing the trace of

the disagreeable thing, this is the amount of my power that

is decreased, […] This is what is meant by: my power

decreases (Deleuze, 1978b, no pagination).

Building adequate ideas is thus essential in order to be less acted upon and to increase one’s power of action. Ideas are the result of the mind’s active and passive affections (Sharp 2007). Or, as Spinoza (1994) puts it, the more (passive and active) affections a mind experiences, the more ideas it forms. I argue that adequate knowledge increases actors’ agency and enhances their capacities for responsibility. This notion of decreasing power of action demonstrates not only effects on prisoners but also on perpetrators: for example, repeating over and over that the prisoners are ‘the worst of the worst’ affect the perpetrators in various

140 ways. It not only increases the likelihood of abuse but also the perpetrators’ fear of the prisoners (Errachidi, 2013; Hickman, 2015; Rose, 2004). As Ahmed Errachidi11

(2013) describes, some perpetrators trembled with fear and Hicks points out that

“[i]t was always interesting to watch the shock on their faces when they first entered the camps […] and the realization that their government ‘did torture’”

(cited by Leopold 2011, 8).

In conclusion, my emphasis is on the minute and constant micropolitical transformations of beings and thus their varying capacities. Prisoners’ affections have effects on the practice of extraordinary rendition as well as on subsequently attempted litigations. Beings and their milieu are co-individuating. The relevance of Simondon for this thesis, then, is his contribution to emphasise the processuality of beings. No being is identical to another nor to its past and future being so that manipulations of beings cannot be pre-determined, neither across beings nor across time (Deleuze 1978b). The multiple affections prisoners experience are due to their complex compositions. It follows that while one technique might be efficient at some point of the interrogation-torture process, it might be less so at another point in time. Coming back to Zubaydah’s forced sitting, the sittings’

‘negative’ affections increased with its prolonged use. Alternatively, as he described his experience of water boarding in Chapter 1, the repeated use of water boarding decreased his capacity to answer the interrogators’ questions. This lack of full control is further relevant in that an interrogator might inadvertently kill the

11 Errachidi (also known as Ahmed Rashidi or the General) is a British citizen born 1966 in Morocco and who was seized in Pakistan (Errachidi 2013). After being detained in Pakistan, Afghanistan, and Gitmo, he was eventually released in April 2007 (Errachidi 2013).

141 prisoner (Slahi 2015). In addition, this approach allows conceptualising the varying capacities for responsibility of perpetrators. This insight is crucial, because it implies that since beings and their mental capacities are neither free nor pre- determined, perpetrators can be held accountable.

This re-formulation of human beings is important to map a geography of evaluation in several ways: human beings’ body and mind affections affect individuals’ bodily and mental capacities. For example, the prisoners’ and lawyers’ capacities to evaluate are important with regard to decisions about constituting a case or about litigating strategies. The perpetrators’ capacity to evaluate is important, as it constitutes the capacity for responsibility, which judicial proceedings presuppose to allocate accountability.

A micropolitical perspective draws out the multiple affections constituting judicial proceedings and human beings and so highlights spaces of intervention.

Ethical evaluations are situational; they are affected and affect the many human and non-human beings involved before, during, and after extraordinary rendition.

Finally, a focus on the micropolitics of extraordinary rendition demonstrates the importance of all involved actors’ actions and decisions, including those of lawyers, activists, judges and prisoners’ family members. I argue in the analysis chapters that the actions and decisions of lawyers and activists trying to improve the prisoners’ detention conditions as well as the relationship between the prisoners and guards — affect all the actors involved for good or bad.

142 Chapter 4

From Judgement to Evaluation

I have argued that a focus in geography on the co-production of legal orders and space (Martin, Scherr, and City 2010) opens important questions, but tends to privilege conscious intention (Gregory 2006). Yet, there is more to life than pure intentionality (Sharpe, Dewsbury, and Hynes 2014). Judicial structures are enacted by actors rather than being straightforward subsumptions under law (Lefebvre,

2008; Mussawir, 2010a, 2011); that is, judicial proceedings cannot be understood as purely rational, as Mussawir (2010a) argues. Instead, actors’ decisions and actions have wide-ranging effects exceeding intentionality (Lefebvre, 2008;

Mussawir, 2010a, 2011). I seek to emphasise that forces exceed the involved actors’ intentions and affect judicial proceedings, including its judicial structures.

For this, I re-formulate the concept of evaluation and draw out its complex and fragile composition. I underscore the unpredictable paths that mental capacitation and ethical evaluation can take in the analysis in Chapters 5 and 6.

Here I outline the creativity of judicial proceedings’ structures and in a second step point out the importance of the involved actors’ decisions and actions in Section 4.1. After arguing that a system of evaluation relies on human beings’ litigation labour, the second section, Section 4.2, re-formulates the conception of human beings and shows that actors’ decisions and actions are complex and fragile. Section 4.3 re-formulates human beings’ mental capacities, while Section

4.4 focuses on the capacity to evaluate. Finally, in Section 4.4, I outline the advantages of analysing extraordinary rendition and the manner in which I gathered data by means of a case studies approach and in-depth interviews.

143

4.1 An Institutionalised System of Evaluation

This section outlines the complex and transforming composition of an institutionalised system of evaluation. This system of evaluation emphasises the continuous enactments of judicial proceedings through various actors’ decisions and actions, which exceed the actors’ intentions. In Deleuzian terms, it is a creative repetition and is affected by its interior and exterior milieu. The aim is to disclose the multiple ways in which the institutionalised system of evaluation is affected and so to highlight its potential for creativity in terms of its judicial structures and its litigation processes.

4.1.1 Creativity within Judicial Structures

The common conception of judgement is that of a subsumption of particulars under legal categories, which obfuscates its creativity (Lefebvre, 2008).

As Lefebvre (2008, 66) puts it, the “law establishes resemblances and equivalences between the subjects it designates, and, on the other hand, it postulates only bare and calculable repetition”. Legal categories assimilate the potential of an encounter into recognised schemas, while innovation is seen as extrinsic to law (Lefebvre,

2008). In Lefebvre’s (2008, 60) words, “thought is kept from its creative capacities in favour of acts of identification”. He (2008, 3) explains that “creativity is reduced to either willfulness [sic] or accident”. For instance, the Human Right discourses commonly “fail to connect to a milieu and hence fail to be determined by the situations they are designed to improve” (Lefebvre, 2008, 85). Lefebvre (2008,

144 146) argues that “for the actual books of law to gain their effect, the rule must be actualized within an event”. He (2008, 85) argues that “the situation is an encounter that forces the law into the invention of a problem, which creates rights to modify and to improve that situation.” Similarly, Mussawir (2010a) argues that the use of analogy in judicial proceedings obscures the enactment of judicial structures. He (2010a, 316) explains that “[a]s a textual tradition, the law is not immune or separate from the technologies involved in its production and dissemination.” That is, the “[t]echniques for the reproduction and reinscription of texts” transform the law (Mussawir 2010a, 316). Lefebvre (2008, 253) concludes that “criticism or praise” of the judicial proceedings' “creativity per se is senseless– it is a fact of judgment and must be affirmed” in order “to be understood”.

It follows that novelty within judicial proceedings is neither exceptional, pre-determined, nor free-floating. My aim is to conceptualise a complex and transforming institutionalised system of evaluation in which novelty is inherent to it, insofar as its judicial structures and the performance of actors are affecting it.

For this re-conceptualisation, I emphasise the complexity of judicial structures to demonstrate their potential for changes. Judicial structures are neither given nor straightforwardly determinable; the distinction between legal and illegal is enacted. There is no simple convergence of ‘the territory’, ‘the perpetrators’ affiliation to an authority’ and ‘the legal order’ and the distinctions between inside versus outside territory, subject status’ duties and rights and the transgressions of legal order are continuously re-performed.

I problematise and re-formulate the concept of territory, as territorial jurisdiction is an often used means to legitimise judgement (Satterthwaite and

145 Fisher 2006). To recall Chapter 3, the conventional understanding of territory, oriented to the distinction between inside and outside territory is inadequate

(Agnew 2009; Blandy and Sibley 2010; Elden 2010a), insofar as it is linked to the conception of a territorial state implying exclusivity and clear-cut boundaries

(Agnew 1994). Territory commonly denotes a clearly demarcated place (Agnew

2009; Elden 2009, 2010a) and is used to delimit state sovereignty (Blandy and

Sibley 2010; Blomley 2003; Vaughan-Williams 2008). It excludes plural ownership

(Elden 2013a) and is considered a strategy to establish exclusive jurisdiction

(Agnew 2005). Agnew (1994, 69) explains that the contemporary conception of the state as a container leads to the problematic and dualistic assumptions that there is a social order “[o]nly inside the state territory” and that outside there “is anarchy and danger”. Yet, Elden (2009) points out the enactments of territory and that processes of re-territorialisations and de-territorialisations of territories are intertwined. Elden (2005, 2007) argues that the de-territorialisation of places emerges from and produce (new) territories. This problematisation hints at the fact that a place is not affiliated straightforwardly or indisputably to an authority.

The key point here is that a place’s territorial affiliation is an enactment of, amongst other things, economic, military, legal, and technological aspects outside as well as within judicial proceedings. Territory is a transforming composite enacted through the four major and interdependent aspects of economy, strategy, development, and legal order, which Elden (2005, 2009, 2010a) champions. To recall Chapter 2, land is a special, limited resource that is at the same time the site of struggles and the stake of struggles. The strategic-military aspect of terrain denotes a relation of power, which aims at the maintenance and control of social

146 order. Territory further requires specific technological developments as well as spatial and power conceptions. The legal aspect of territory concerns relations of authority, legal orders and their limits. Elden (2013a) thus concludes that territory is not a product but a process. In addition, it is both embodied and mental (Elden

2013b). In sum, territory is a specific spatial conception, which is a historically produced and a geographically uneven concept that orders the world (Agnew

2007; Blandy and Sibley 2010; Elden 2010b). Territories and their demarcation lines of inside versus outside are the product of performances that contain within them the scope for significant transformations.

The question arising then is how a place of offence is determined as part of a territory. Amongst other enactments, the law enforcement constitutes territories by performing demarcation lines (Blandy and Sibley 2010; Blomley 2003; Elden

2009). Elden (2009) argues that the international law naturalises and protects borders instead of recognising their artificial nature. Yet, at the same time, scholars draw attention to how spatialisation legitimises differential laws and constitutes subjectivities (Rose & Valverde, 1998; Valverde, 2010b; Zevnik, 2011). As discussed in the last chapter, boundaries are never neutral; demarcating places enables and prohibits different behaviour (Blandy and Sibley 2010). That is, conceptions of territories in turn affect judicial proceedings by affirming boundaries and categorising resources and people. With regard to extraordinary rendition, this re-formulation of territory allows conceptualising how Guantánamo

Bay’s territorial affiliation can and is debated: its affiliation is not simply achieved, but is re-asserted or refuted through actors’ actions and decisions.

147 Personal jurisdiction has to be re-reformulated as well, since the conception of a controlling authority is problematic. The developed approach highlights the complex composition of authority and set out the enactment of perpetrators’ affiliations with an authority, because there is a fundamental distinction between human beings as modes of existence and as subject status (Mussawir 2011). The idea that a state authority is responsible for the action of its officials is problematic for a number of reasons.

In the first place, ‘the state’ is not a single unity and scholars increasingly recognise the complex composition of state authority and depict it as fragmented across multiple controlling actors producing and enforcing laws (Allen & Cochrane,

2010; Rose & Valverde, 1998; Shaw, 2003). For example, Nikolas Rose and Mariana

Valverde (1998) argue that there is no longer a monopoly of sovereign power represented by a single person or institution. Martin Shaw (2003) similarly conceptualises the state as a set of institutions. Scott et al. (2011, 10) suggest that a

“new body of rules and practices has emerged”, which is built from hybrid and multilevel corporate governance (see also Barkan 2011). Scott et al. (2011, 10) point out the increasing relevance of corporate governance and how these corporations lead to a “more pluralistic conception of law making and law enforcement”. In addition, Carolyn Nordstrom’s (2003) and Janet Roitman’s

(2005) analyses show that different state and institutional authorities are interdependent. Similarly, John Allen and Allan Cochrane (2010) emphasise that authority is constantly negotiated by a range of actors. This multiplicity of interacting authorities is also found in extraordinary rendition, where, for

148 example, Zubaydah’s interrogation was conducted separately by the rivalling FBI and CIA, as well as in cooperation (Soufan 2011).

Similarly, scholars increasingly recognise the production of subject status

(Arendt 1992; Valverde 2010b; Zevnik 2013). Judicial proceedings enact a person’s affiliation (Arendt 1992; Valverde 2010b; Zevnik 2013). Anticipating such scholarship, Arendt (1992, 2003) explains that a major function of the judicial system is to address single human beings and to produce the subject status of persons. The judicial system takes the individual human being out of the cog and wheel functioning of mass society and puts him or her as individual into the courtroom (Arendt 2003). Zevnik (2011) similarly points out that subject status is concurrently constituted by law and constituting the law.

Subject status does not encompass the full human being, but only a specific legal side of being (Beiner 1992; Mussawir 2011; Zevnik 2011). Pointedly, Arendt argues that “judgment can function only where those judged are neither beasts nor angels but men” (Beiner 1992, 98). Zevnik (2011) explains that legal subjectivity has no material essence, whereas Mussawir (2011, 31) argues that “[t]he legal person does not hide a ‘true’ identity or an internal subjectivity, but offers only a fragmented or non-totalized identity linked to a discrete civic function”. The legal person does not “represent, reflect or recognize something that supposedly exists

– or exists more fundamentally – outside of the discursive domain of these instruments” (Mussawir 2011, 33). Mussawir, then, stresses that rights are related to “the masks through which they become something lived” (2011, 68) and draws attention to the “problematic of ‘Who?’ can be capable of certain rights and actions” (2011, 33). He (2011, 33) therefore argues against conceptualising rights

149 as something “inherent to human existence or to the coherence of an abstract rights-and-duties bearing unit”. Moreover, he (2011, 29) points out that judgement is limited to “an ever more discrete forum and an ever more specific type of person.” The subject status and the rights allocated to it are a matter of re-asserted recognition.

By specifying that human beings need to “become the subject of legal judgment”, Mussawir (2010a, 322) eludes to the question of how a human being is affiliated to a subject status. On one hand, this question concerns the determination of perpetrators’ subject status. The subject status of perpetrators and the allocated duties depend upon the perpetrators’ affiliations with an authority. I address the issue of the responsibility of perpetrators later in this chapter, here I emphasise that their subject status affiliations are neither singular nor exclusive. As one of my interviewees points out, the multiple affiliations are instrumentalised to defer responsibility: “you’ve got these companies, where, private security contractors, where they’ve got links within the State Department; they’ve got links within the Department of Justice. […] that’s how they negate responsibility as well” (Interviewee A 2014).

The subject status of prisoners is enacted through multiple and minute practices involving prisoners, perpetrators and other actors. Extraordinary rendition prisoners are not automatically recognised as humans with rights, but declared to be ‘enemy combatants’ subjects without rights (Khan 2008; Zevnik

2011, 2013). Subject status emerges and changes (Johns 2005; Reid-Henry 2007;

Zevnik 2013): for instance, the ethically deplorable status of enemy combatant, and its implied rights, has evolved since its first invocation (Johns 2005). Anderson

150 (2014, 75) explains that “a cut is made within life between lives that are valued and lives that are devalued.” And Gregory (2006, 17) argues that “prisoners are reduced to bare life through torture”. He (2006, 14) describes the prisoners’ bare life status as follows:

it was viscerally clear that they were to be reduced to bare

life. All legal protections had been visibly withdrawn from

them. Photographs of their transportation and

incarceration at once displayed and reinforced their

reduction to something less than human. They had been

chained, gloved, ear-muffed and masked throughout their

twenty-seven-hour flight, and arrived soaked in their own

bodily waste.

A human being’s subject status transforms and can take surprising forms. I argue that there is more involved in performing bare life than simply the sovereign’s decision of stripping away pre-given rights. My empirical material demonstrates that human beings can and do change from one subject status into another: from having specific rights to having no rights. Prisoners at Gitmo challenged their affiliation to a bare life status by demanding a subject status as iguanas or dogs

(Khan 2008; Zevnik 2011, 2013). The idea was that the recognition as dogs or iguanas would protect them more than the subject status of enemy combatant

(Khan 2008; Zevnik 2011, 2013). In Zevnik’s (2011, 163) words, prisoners

“demanded ‘dog-rights’ because a dog in the camp had a house, water, food, shade,

151 and grass on which to exercise.” Mussawir (2010a, 322) points out an important aspect; namely, that a subject “can be judged only in relation to definite charges which are the subject of investigation, trial, verdict, and so on”. In what follows, I thus seek to reformulate the conception of legal order as metastable beings composed of multiple entities, to use Simondonian terms.

Legal orders are situational; they are embedded in a milieu that affects them, and that they in turn affect (Lefebvre, 2006). The classical understanding depicts the laws as an ordering force of the social world and distinct form of social and spatial practices (Barkan 2011). The laws’ function is deemed to be to stabilise human conditions by transcending individual lifespan (Arendt 2007b) and to resolve disputes (Delaney 2001; Santos 2006). It is depicted as rational, stable, and a clearly bounded set of rules for a specific territory, Barkan (2011) points out.

Scholars now increasingly recognise the complex composition of legal orders in terms of ‘legal pluralism’ or ‘interlegality’ (Barkan, 2011; Rose & Valverde, 1998;

Santos, 2006). Rose and Valverde (1998, 545) point out that “there is no such thing as ‘The Law’”; instead, different and conflicting legal orders co-exist. This plurality and the tensions arising from it are visible in the different laws and treaties, which encompass different non-refoulement obligations, as I depicted in Chapter 2. In addition, different legal orders operate at different municipal, national, and international levels (Hubbard 2013; Santos 2006; Valverde 2009). The different legal orders are in tense and potentially conflicting relations to each other (Barkan

2011; Hubbard 2013; Santos 2006). For instance, Levy and Sznaider (2006) highlight that the Humanitarian Law and the Human Rights Law challenge a country's domestic integrity. States are bound to respect these ‘external’

152 international laws, while at the same time being responsible for implementing these rights. As Hubbard’s (2013) example of citizenship in the last chapter indicates, the conflicts emerge in specific and concrete situations.

Legal orders are constantly re-asserted and transformed through various actors’ decisions and actions. Martin et al. (2010) point out that the law is produced by actors and institutional structures scattered across time and space.

Similarly, Barkan (2011) stresses that ‘the law’ is transformed in daily practices of how people think about, engage, contest, and reproduce legal concepts and laws.

Beings enacting legal orders range across different degrees of formal and informal as well as non-legal forms (Barkan 2011; Cotterrell 2008; Santos 2006). For example, there are on the formal side judges, lawyers, various courts, law books, and procedures as well as on the informal side customs, traditions, norms, and moral values (Cotterrell 2009; Gillespie 2012; Santos 2006).

As was briefly raised in Chapter 3, Barkan (2011) emphasises that the law is a type of world-writing with far reaching political, economic, and social effects.

That is, defining duties, rights, and transgressions of laws is not neutral. Legal orders regulate the offence, the offender, and the situation (Rose & Valverde,

1998): legal orders distinguish and categorise offences, rights and the reach of laws and so prioritise some targets over others (Valverde 2010a). The legal orders’ differentiations of territories, subject status and offences are violent and create boundaries at the micro level (Blandy and Sibley 2010; Blomley 2003; Mountz et al. 2012). For example, Mountz et al. (2012, 532) illustratively point out that

“migrants carry borders on their bodies and in their fingertips”. These distinctions are important, as the different formulations and determination of ill-treatment

153 versus torture or other forms of abuse imply different possibilities with regard to claiming jurisdiction, litigation strategies or constituting a judicial case

(Interviewee A 2014; Parry 2005). External forces, such as introducing novel subjects of regulation, transform legal orders (Dosse 2010; Mussawir 2010a;

Valverde 2010b). They can bring the “juridical procedure down to the level of

‘ordinary’ events or to that level of life previously thought unworthy of being judged within a legal forum” (Mussawir 2010a, 325).

The transformative and situational character of legal orders allow for novelty, but does not imply their complete malleability, as Lefebvre (2008) specifies. In Lefebvre's (2008, 103) words, a “rule, by virtue of being in time, has had its reasons forgotten and its sense lost; […] this rule must be created anew […].

Adjudication can follow tradition only by creating rules.” As Lefebvre (2008, 58) points out, “Deleuze is not recommending flux and destabilization in law”. Instead, the question is how an apparently identical issue, such as smoking in a cab, can be

“reversed over a relatively short period of time” (Lefebvre, 2008, 58). Lefebvre

(2008, 58) explains that such a transformation is due to “the connection or coordination between right and milieu”.

4.1.2 The Litigating Actors

Judicial structures in terms of the categories of territory, subject status and legal orders rely on multiple actors’ enactments and so transform in perceived and unperceived ways. In this next subsection, I point out the role of individual beings’ capacities for performing judicial structures and argue that judicial proceedings

154 are affected by judicial structures and the feelings, thoughts, and actions of, amongst others, the prisoners, perpetrators and lawyers.

The complex compositions of judicial proceedings imply that judicial cases have to be assembled and so allude to the actors’ pre-trial litigation performances.

Preparing a case requires a specification of the parameters of the claim: the places of the different offences, the perpetrators, and the transgressions of legal orders have to be determined (Martin, Scherr, and City 2010). Thereby, territory carves up space into clearly demarcated parcels of authority affiliations and obligations and classifies what legal orders might apply to what legal subjects. As outlined in

Chapter 3, asserting jurisdiction is also typically a question about jurisdiction over a person (Mussawir 2011). This jurisdiction implies the determination of perpetrators’ affiliations with a subject status and encompasses the issue of the perpetrators’ capacity for responsibility. The judicial proceedings require a responsible perpetrator. Determining the offence with regard to applicable legal orders and the transgressed prisoners’ rights implies that one and the same event can be ‘subsumed’ under different offences and, thus, under different legal orders

(Interviewee A 2014; Levy and Sznaider 2006). If the offence is determined as a crime against humanity, it allows any state to invoke universal jurisdiction. Yet, this last jurisdiction presupposes that prisoners are recognised as human subjects.

I suggest that a prisoner’s ordeal exceeds any constitution of a judicial case, because a case is a restricted and recognised re-constitution of the prisoners’ ordeal. A judicial case is always already a restricted selection of the ordeal’s aspects deemed significant for litigating (Lefebvre, 2008; Martin et al., 2010;

Mussawir, 2010a). Or, as Lefebvre (2008, 157) points out, a case has to be

155 translated into the law’s terms: “[b]efore being perceived, a case bears infinite aspects, only some of which are deemed legally relevant”. Lefebvre (2008, 145) explicates that, “[s]omeone – whether a litigant, a lawyer, a judge, or someone else

– must connect that raw event to law; only that can initiate the use of the actual, written texts.”

Consequently, the process of constituting a case is a lengthy and very variable process. The determination of territory, subject status and legal order demands a vast amount of investigating and litigating labour. To determine a place, subject status and offence is always to exclude other interpretations of an ordeal.

The case’s constitution and the determination of legal categories are further asserted as well as refuted during litigation processes by the opposing parties. The litigation is thus both de- and re-territorialising, that is, disconnecting and reconnecting entities to establish specific places’ territorial affiliations, the perpetrators' subject statuses, and the transgressions of a legal order.

One type of labour I draw attention to in Chapter 6 is the gathering of information and its transformation into evidence. The processes of de- territorialisation and re-territorialisation of territories, subject status, and legal orders are simultaneous within the ordeal as well as during litigation processes.

For instance, Mountz et al. (2012, 534) outline that “detention produces paradoxical processes of deterritorialization, externalization, and internalization of borders through the deliberate bordering and marking of migrant bodies.” As I show in Chapter 5, prisoners describe how transfers de-territorialise them, insofar as transfers disorient them and conversely, the transfers give clues for re-

156 territorialisations. In addition, the disorientation affection that prisoners experience affects the credibility of the prisoners’ statements.

I suggest conceptualising judicial proceedings as an institutionalised system of evaluation in order to emphasise that judicial structures are constituted and affected by multiple actors’ decision and actions. I document in Chapter 6 how the particular affections of prisoners, perpetrators, lawyers and judges affect judicial proceedings and demonstrate that litigation processes are suffused by these actors’ necessary decision-takings. Performing a judicial judgement “depends on the encounter with the case, and it is inherently (not accidentally, not wilfully [sic]) creative” (Lefebvre, 2008, 143). The very categories of territory, subject status, and legal orders are transforming, they undergo micropolitical transformations with a potential for macropolitical change. With regard to extraordinary renditions, the

Military Commissions is an extreme example of a trial that emphasises the relatively open character of judicial proceedings in terms of structures and litigating actors. With this in mind, I now turn to the general question of the human being’s capacity to decide and act.

4.2 Decisions and Actions of Litigating Actors

If, as argued above, the decisions and actions of various actors are relevant to the institutionalised system of evaluation, then the actors’ feelings, thoughts and actions have to be taken seriously. Previous studies in Carceral Geography (Conlon and Hiemstra 2014; Gill 2009) draw attention to the intentional manipulations of prisoners. For example, Carceral Geography sets out the tactical use of detainees’ transfers to break their social network (Conlon and Hiemstra 2014; Gill 2009) and

157 to increase different types of financial costs for them (Conlon and Hiemstra 2014).

I aim to expand upon the contributions of Carceral Geographers by analysing the effects of the various involved actors’ affections in terms of their intensity and not merely the actors’ intentions.

To recall Chapter 3, human beings exist only in relations and are complex composites, which allude to the fact that their capacities depend upon their interior and exterior milieu (Deleuze 1978b; Sharp 2011; Simondon 2009b). As complex compositions, human beings continuously experience multiple affections and thus transform and modulate in minute and unpredictable ways. The interior milieu of actors denotes all the subbodies and all the ideas within the individual being and includes spatial extensions, such as arms, legs, stomach, or bladder, as well as including conscious and unconscious ideas, such as an urge to pee — a full bladder, hunger — an empty stomach, or conceptions of dignity. Exterior forces, such as detention conditions, physical and mental abuses, or judicial structures to challenge their detention also affect the prisoners, perpetrators and other involved actors. The body is a complex affective ‘surface’ and the affections that pass across it exceed by far the sensations derived from the traditional five senses (Swirski

2013). Swirski (2013) points out that senses unfold not only along material but also along social and temporal lines.

This complex sense of bodies is receiving increased scholarly attention as the materialist way of approaching a phenomenon emerges (Anderson & Wylie,

2009). For example, Kraftl and Adey (2008) emphasise that the details of architecture exceed the purely visual-symbolic reading of signs and have tactile and sensual effects. Yeung and Somashekhar (2016) describe how prisoners’

158 various senses are increased or decreased by the prison framework. Moreover, the two short lists above illustrate the inadequacy and impossibility of clearly separating material and immaterial experiences. They also illustrate that the distinction between interior and exterior forces are a purely analytical distinction.

Following Spinoza’s parallelism, we can see that the human mind is capable of many ideas, because the human body is constituted by an infinity of subbodies

(Spinoza 1994). Affections do not necessarily imply our conscious registration of an increase or decrease of one’s capacities (Massumi 1995; Sharp 2011). Instead, affections have to cross an intensive threshold before being consciously perceived

(Massumi 2002). The failure of ‘visible’ transformation, however, is not to be equated with the failure of developing ideas (Massumi 1995). Sharp (2011, 13) explains that affect as “impersonal forces […] circulate in the social body, enabling and constraining the powers of bodies and minds, often without anyone’s awareness or knowledge.” Consciousness is only a small part of the mind and thus the mind's capacities are effects of multiple affections in excess of intentionality

(Sharp 2011).

This conception of human beings raises questions about the seeming obstinacy of beings. How can we conceptualise the perception of a ‘self’ and our felt continuity, if ‘we’ are produced by the continuous tensions and different desires that drive us? According to Daniel Smith (2007, 69), “each of us has multiple perspectives on the world because of the multiplicity of our drives— drives that are often contradictory among themselves”. Smith (2007) argues that the ‘I’ represents the dominant drive, whereby the lesser drives are pushed afar. It is other desires that combat the ‘dominant’ desire, and our intellect is only a tool

159 used by the other drives (Smith 2007). Most importantly, Smith’s (2007) description of the self as the dominant drive emphasises the unintentional aspects of the ‘I’. Dominance is not about existence or non-existence, but about the prominence or obscurity of forces (Smith 2007). This conception of the parallelism between body and mind requires a re-formulation of self-conception, as well as consciousness and agency.

4.2.1 The Habit of Self

From Spinoza’s concept of parallelism, it follows that habits are always both habits of the body and of the mind. The body is essential for habits, as it is the space in which habits are “formed and undone” (Lapworth 2015a, 92). Habits

“reside in the matter of the body, in the muscles, nerves, and skin, where they operate autonomously. Although they are contracted in social contexts, they must be considered self-active autonomies” (Massumi 2002, 236–37). Macpherson

(2010) similarly posits that the body is constituted by biological impulses and cultural-neurological habits that are triggered through one’s interaction with the world. It is important to note, too, that Deleuze pushed the concept of habit to stress and encompass material becoming across living and nonliving beings

(Deleuze 1994; Lapworth 2015a). Andrew Lapworth (2015a, 89) explains that

Deleuze’s conception of habits also concerns “the passive syntheses of heat, light, water, nutrients and so on that compose us organically”. Furthermore, Lapworth

(2015a) points out that habit is not only related to the physical body, but also, irreducibly, to the social realm. Habit is a deeply relational effect of encounters and thus is irreducible to either physical bodies or social forces (Lapworth 2015a).

160 Habits, then, can be said to be cultural or political, because they are learned

(Macpherson 2010; Massumi 2002).

Habit explicates the seeming stability and at the same time highlights the creativity of human beings’ body and mind. Human beings are neither fixed nor free-floating, but formed in and through encounters (Deleuze 1988b; Spinoza

1994). Habit is a tendency that increases the likelihood of actualising some aspects of a force rather than another. Lapworth (2015a, 91) argues that habit is best

“described, following Gilbert Simondon, as a metastable entity: a fragile state full of tensions and potentialities that is always capable of further change and transformation”. Habit is constantly experiencing minor interruptions that require creative responses, thus, habit constitutes a source of possible transformations

(Lapworth 2015a); habit is an “active disposition rather than a static state”

(Lapworth 2015a, 88). Thus, quoting Deleuze, Lapworth (2015a), points out that human beings (and non-human beings as well) do not have habits but “are habits, nothing but habits – the habit of saying ‘I’. Perhaps there is no more striking answer to the problem of the self” (cited by Lapworth 2015a, 89).

The mind and conceptions of the self are habits as well. Non- representational scholars emphasise that the unity of the mind is a conscious and unconscious retrospective unification (Lapworth 2015a; Manning 2013; Massumi

1995). As explicated in Chapter 3, ideas fix the mind in that the specific ways of connecting ideas give consistency and uniformity to the mind (Deleuze and Scott

2011; Spinoza 1994). For example, Massumi (1995) argues that body stimulations are sensed instantly but unconsciously; the mind then has to ‘date them back’ to achieve linearity and continuity. Similarly, Manning (2013, 28) argues that “the ‘I’

161 is the afterthought of a complex affective process”. It is this habit of ‘I’, then, that

“gives a being the impression of its existence as something continuous” (Lapworth

2015a, 89).

The self is an effect of affections and at the same time, the self-conception affects the way in which human beings make sense of their affections. This ‘I’ or self is a limitation of the mind in that it limits possible associations and meanings

(Deleuze and Scott 2011; Smith 2007). An example from Nietzsche illustrates well this dependency upon multiple human and non-human beings. Using the example of someone laughing at us when we pass, he illustrates that, depending on one’s dominant drive, the encounter may be interpreted very differently. Nietzsche explains that if:

this event will signify this or that to us according to

whether this or that drive happens at that moment to be at

its height in us—and it will be a quite different event

according to the kind of person we are […] —and in each

case, a drive has gratified itself, whether it be the drive to

annoyance, or to combativeness or to reflection or to

benevolence. This drive seized the event as its prey. Why

precisely this one? Because, thirsty and hungry, it was lying

in wait (Nietzsche cited by Smith 2007, 69).

This re-formulation of the mind and its practices of interpretation from the point of view of the drives posits mental capacities as the effect of affections.

162 Indeed, one might suggest that there is no self or thinking without exterior and interior affections (Lapworth 2015a; Sharp 2011; Smith 2007). It follows that encounters become essential in rupturing and re-forming habits of thinking and being. The changing milieu changes the capacities of bodies and with them, the capacities of thinking (Roberts 2012). Following Lapworth (2015a), I thus suggest that that the ‘self’ is a habit, which is a deeply relational effect resulting from encounters. A key function of habit is to absorb shocks and to constitute a sense of consistency and durability (Lapworth 2015a). Habit handles small disruptions and constitutes the seeming stability of human beings’ selves; the mind and the self are habits depending upon their interior and exterior milieu. The self, then, is not autonomous, but requires exterior stimuli (Story 2014). This conception of habit is relevant for it points towards how major disruptions unsettle habits and so affect prisoners’ or perpetrators’ selves.

Desires simultaneously de- and re-territorialise human beings (Deleuze and

Guattari 1986), and so affection as a form of disruption of habits implies a de- territorialisation. And yet, affection always re-territorialises as well; it is through the body and the senses that space is perceived (Scott, 2014). In Chapters 5 and 6, I illustrate how the richness of life implies that there are always unexpected means for prisoners to re-territorialise themselves. I point out that they not only re- territorialise themselves in terms of the place of detention, the controlling authority, and their rights, but also re-territorialise their sense of self. Prisoners often note that a sense of resisting serves as a key way for them to remain sane and to maintain their identity. Moreover, as the more empirical chapters show, the affections experienced by the prisoners, perpetrators, lawyers, activists, and

163 judges matter in that they increase or decrease their mental capacities and consequently affect the very possibilities of evaluation and thus the shape of judicial proceedings.

This re-formulation of the self as habit further attests to the inadequacy of a gap between body and mind. I suggest that the concept of habit intervenes in the commonly asserted gap between body and mind. The delineation of thinking and acting is less about a split between body and mind than about the issue of consciousness. The dualism of body and mind posits a split between thinking and acting and has led to debates about the predominance of the mind and the reverse.

For instance, Arendt claims that there is a deep distinction between thinking and acting. Arendt (1977, 1992) claims that withdrawal from bodily needs is required for the mind to think, because “[w]henever we think, we stop whatever else we may have been doing” (2003, 105). She argues that one can only think of an object if it is removed from direct sense perception. Yet, I argue that what Arendt refers to when she speaks of such withdrawal is not mental activity as such, but simply conscious mental activity.

The parallelism of the Spinozan re-formulation of beings challenges the

“Cartesian relation between matter and thought” (Roberts 2012, 2514). The issue with the Cartesian model is the “pervasive subject-object binary: matter becomes an inert substrate, subordinated to the will of creative human subjects” (Roberts

2012, 2514). Yet, as Roberts (2012, 2518) puts it “we can no longer grant the mind a monopoly over the body.” Indeed, one could argue that the Cartesian model has never been an adequate description, since, to put it in Spinozan terms, it falls prey to the illusions of consciousness. Spinoza’s (1994) parallelism implies that neither

164 body nor mind reign over the other. Instead, as Sharp (2011, 29) explains, “Spinoza

[…] describes the necessary identity of body and mind, their perfectly symmetrical activity and passivity”. Parallelism means that “[t]he restriction’s primary function is not to denigrate bodily power or activity, but to deny the power of the will to impose itself upon the body” (Sharp 2011, 28). She (2011, 28) also highlights that

“ideas and bodies do not express or explain one another but rather express one and the same order and connection of causes”.

The re-formulation of the distinctly human mode of being also enables a grasp of the difference between the active and passive affections of the mind, which challenges some of the naïve presumptions of intentionality. The mind’s capacities exist on a continuum of passivity and activity, whereby passivity and activity are distinguished by being an adequate cause (Sharp 2011). The difference lays in the degree, or in Sharp’s (2011, 66) words: “everything we do is, at the same time, both a product of some degree of freedom and in large measure a gift that can never be repaid”. As she highlights, one is never fully the cause nor fully passive either. While one can be a sufficient cause for an action, one is never the sole cause (Sharp 2011).

4.2.2 Mental Capacities and the Range of Agency

If consciousness is only a tiny part of the mind, then, the common conception of free will is inadequate. The will is neither fully pre-determined nor completely free (Deleuze 1978a; Sharp 2011). Mental capacities, such as reasoning, thinking and willing, are temporary coagulations of multiple and constant affections (Sharp 2011). Ideas encounter resistance by human and non-human

165 beings, thus there is constant variation in us (Deleuze 1978a; Sharp 2011). Beings have the thoughts and experience the feelings they deserve in that they are bound to their mode of existence; that is, we are ‘bound’ to our “way of being or our style of life” (Deleuze, cited by Smith 2007, 67). Smith (2007, 67) explains that this implies that “there are other things one cannot do or say except on the condition of being strong, noble, or free, unless one affirms life, unless one attains active affections”. It is thus important to pay more attention to what it means to speak of the mental capacities of thinking, reasoning and willing, before developing the concept of the capacity to evaluate in the next section.

I described in Chapter 3 that, after Deleuze, thinking is understood to be a form of linking ideas, which is active, but not necessarily conscious and it stands in contrast to the mere recognition of categories. As Lefebvre (2008, 72) summarises,

“[w]e think when we do not recognize. Deleuze does not deny recognition its necessity. What he does deny is the identification of recognition as thought.”

Lefebvre (2008, 73) explains that thinking “occurs whenever clichés, habits, categories, and propositional certitudes are no longer sufficient to account for, think, and react within situation.” The disruptions of desire and its constraints impel us to think (Hynes and Sharpe 2015; Lapworth 2015a; Sharp 2011).

Thinking displaces and re-organises ideas (Sharp 2011). Phrased in Simondonian terms, thinking is an active process of combining disparate ideas issuing from affections and thus is always creative. This implies that one’s experiences impact on one’s possibility of thinking (Smith 2007), that is, “genuine creativity and novelty arise from encounters” (Lapworth 2015a, 91).

166 The capacity to reason denotes an active capacity, yet it too depends upon the interior and exterior milieu and varies (Deleuze 1988b; Sharp 2011). Human beings are not born reasonable, but become rational (Deleuze 1988b). As described in Chapter 3, reason is a specific form of linking ideas by means of

‘recognised’ causality. It is not universal in its content, but is constituted by a particular action in particular individuals (Deleuze 1988b). The capacity to reason requires prior passions-ideas that are then doubled by an active, but not necessarily conscious, understanding of causation (Deleuze 1988b). Reason, then, is a means to actively increase capacities (Deleuze 1988b). It follows that beings can only become reasonable by means of increasing affections. Consciousness alone is not enough, to be conscious of one’s action, but ignorant of the cause is to be acted upon (Deleuze 1988b). Encounters produce bodily sensations and ideas, but only possibly thinking. Only the knowledge of cause-and-effect relations enables active actions.

This re-formulation of consciousness and the mind’s capacities to think and reason have repercussions upon the conception of human agency. Sharp (2011,

65) argues that consciousness is not so much the cause of agency as an effect and points out that “to be a human mind is to be a tiny and often confused agency amidst immeasurably many other forces”. The affections constituting the mind and its capacities exceed the subject (Hynes 2015). We exaggerate our own power and ignore other forces (Sharp 2011). Sharp (2011) explains that if decisions and actions lead to the desired effect, we assume that we are responsible for it, while if they fail we blame it on other forces. Sharp (2011, 64) illustrates her point with the example of the fly in the stagecoach, a fable by Jean de La Fontaine:

167

[A] stagecoach struggles to mount a steep hill drawn by

several strong horses. The fly believes that by stinging

everyone in the coach and buzzing around she will impel

the coach toward its destination and expects to be

rewarded for her efforts when the horses finally succeed.

Because the fly desires the forward motion of the coach,

she imagines her endeavors to be its motor. If the coach

had fallen irretrievably into a ditch, however, the fly would

have searched for an external cause to hold responsible for

thwarting her aim. The realization of her goal, in contrast,

appears as her accomplishment alone (Sharp 2011, 64).

Following such lines of thought, the Deleuze-Spinozist reconceptualisation of human beings upon which I draw and to which I contribute, dethrones consciousness by re-embedding it in its milieu. Despite the increasing problematisation of the human subject since the 20th century, human intentionality remains the focus of most research (Roberts 2012). Focusing solely on human intentions falls short of drawing out the multiple interior and exterior forces constituting intentions (Sharp 2011). The issue, then, is not perception but recognition, in that the dominant regimes filter perceptions into intelligible entities (Sharp 2011). Massumi (2002) argues that consciousness arises only after the unfolding of relations and that it requires time to be constituted. The re- formulation of the mind as an expression of infinite ideas indicates that

168 consciousness is only the tip of the iceberg, a temporary coagulation of multiple affections forming the mind. Consciousness does not transcend nature, but is relational (Sharp 2011). It is the redoubling of ideas, an idea of an idea, which is only worth what the primary (inadequate or adequate) idea is worth (Deleuze

1988b). As with any idea, consciousness has no power on its own (Sharp 2011). In

Sharp’s (2011, 70) words, “[j]ust as we remain unconscious of the activities of our organs, bloodstream, immune system, and so on, we also remain unconscious of the various ideas that impact and circulate within our minds.”

Multiple internal and external affections set a frame to what is commonly thought to be agency. Sharp (2011) illustrates that reason and will are not chosen freely, but are the results of affections constituting us. Agency is thus constituted by more than simply conscious intentions and has to be re-conceptualised as a

“freedom-within-relation” (Sharp 2011, 34). Human beings’ capacities limit as well as constitute the range of freedom (Lefebvre, 2013; Sharp, 2011; Smith, 2007). The freedom of beings consists in their capacities to transform. Freedom is the

“profound capacity for becoming other, transformation, metamorphosis”

(Lefebvre, 2013, 212). Lefebvre (2013, 211) explains that “for Deleuze, freedom is realized in those episodes of deterritorialization and reterritorialization though

[sic] which a subject is transformed”.

The implication is that what the prisoners, perpetrators, and various other actors experience, do, and witness has effects and affects them. Prisoners, perpetrators, as well as lawyers, and investigators continuously experience and simultaneously continuously affect other beings in minute and unpredictable ways, beyond the intentions that we or they might retrospectively attribute to their

169 actions. My point is that the mistreatment of prisoners has reverberating effects on the perpetrators or the prisoners’ lawyers for instance, and ultimately on society as a whole. As Human Rights lawyer Interviewee K (2016) puts it, “[t]he people who did the torture, […] they suffer”. She explains, “people who torture are themselves tortured. In the sense that, there’s a guard, […] [who] said: ‘I have

PTSD, not for what happened to me but for what I did to people”.

As affections depend on the individual’s disposition and are always particular, there cannot ever be full control over manipulation. They are the particular result of the coagulation of disposition and milieu. Affections are neither free-floating nor pre-determined, as they are the result of relations between entities and depend upon beings and their relations (Anderson, 2009). As

Anderson (2012a, 29) puts it, there is a “surplus of life” that cannot be fully controlled. It follows that affections can never be fully controlled (Kraftl and Adey

2008; Massumi 2005; Sharp 2011; Thrift 2004). Similarly, Macpherson (2010, 7) describes how objects come with past associations, which limit the virtual potential for beings in that “only certain possibilities tend to be actualized”.

Nonetheless, manipulation is possible. Anderson (2014) traces how an affective state becomes an object – that is, a space for intentional intervention – through being named. Anderson highlights how the affective state of DDD

(‘Debility, Dependency and Dread), is a complex composite and not simply produced but continuously transforming. An affective state is composed of multiple affections and entangled with other versions of the same object across space and time (Anderson, 2014). Anderson (2014, 52–53) points out that today’s technique and the object of DDD is different from that in the 1950s, for “[i]t is

170 linked to the subject in different ways. It is produced for different purposes. And it is experienced in different ways. In other words, it cannot be assumed that an object-target is a single thing that remains consistent”.

In a more recent article, Anderson (2016) expands upon this aspect of transformation by stressing the possibilities that declaring an emergency opens up in the present. Anderson highlights how the future’s conception plays into the present; it plays into the “tones, habits, infrastructures and practices of the present” (Anderson, 2016, 5). Declaring an emergency is “the promise of the emergency state: that a non-emergency normality exists and can be protected”

(Anderson, 2016, 12). That is, declaring an emergency has effects on the present.

Anderson’s description points out that there are always novel ways of perceiving life. What Anderson (2014, 74) points out, then, is that life is not unchangeable; beings transform for better or worse in that it “is this form of optimism that is needed […] a mode of engagement that discloses the fragility of how a multiplicity of bits and pieces are integrated through a strategic relation.”

The conception of a metastable mind and self avoids the image of selves as so given and fixed as to be able to be broken. To conceptualise the prisoners’ selves as broken misses the ways in which the prisoners continuously re-territorialise their selves and how the habit of self transforms. The thesis argues that there is always an idea of the self: even a ‘destroyed’ self is a form of self. It follows that disturbing prisoners’ habit affects their self-conception. The manipulation of prisoners’ affective states is induced by framing the body, which based on

Spinoza’s (1994) parallelism, is concurrently to frame the mind and vice versa (see also Potter 2008). Of course, the prisoners’ self-concepts are affected by

171 interrogation-torture techniques. Disturbing Mohamedou Ould Slahi’s12 habit of praying at given times in the day discomforted and negatively affected him (Slahi

2015). Yet, prisoners’ selves are not only continuously affected by the perpetrators’ manipulations but also by unintentional affections. Consequently, encounters through triggering affections and disruptions force prisoners and perpetrators to re-evaluate their situation and their range of possible actions. I demonstrate in Chapter 5 how the disruption of the habit of trusting can lead perpetrators to question their superiors’ affirmations and to evaluate their given orders (Hickman 2015). Or in Hicks' words, the disruptions of thinking habits led some perpetrators to struggle “to carry out questionable orders” (cited by Leopold

2011, 8). Importantly, it is not just the prisoners but also the perpetrators that are manipulated yet still have a range of agency. As Hickman (2015), a former guard at

Gitmo points out, taking part in beating already subdued prisoners was neither required nor punished by the officials in charge. That is, the guards are not forced to be brutal (Hickman 2015). They have agency in engaging or not in brutal mistreatment.

4.3 From Judgement to the Capacity to Evaluate

Re-formulating the capacity to evaluate is crucial for understanding why some people engage in the ethically dubious practice of extraordinary rendition.

Evaluations affect the decisions and actions of prisoners, perpetrators, lawyers and

12 Slahi is a Mauritanian citizen, who was arrested in Mauritania in 2001 on behalf of the US (Slahi 2015). He has only recently been released from Gitmo, in October 2016 (ACLU 2016).

172 judges during both extraordinary rendition ordeals and litigation processes.

Analysing the lived experience of extraordinary rendition emphasises the multiple and minute ways in which extraordinary rendition affects the involved actors’ mental capacities and that to feel, think, and act are results of the actors’ mode of existence (Smith 2007). Consequently, the capacity to evaluate within and on extraordinary rendition is in a process of constant and minute modulation. This section formulates a non-representational and micropolitical conception of the capacity to evaluate based upon Arendt’s (1964, 1992, 2003) conception of judgement and Deleuze’s (Deleuze, 1998a; Lefebvre, 2008; Mussawir, 2011; Smith,

2007) ethical judgement and explores the importance of the distinction between judgement and evaluation.

In Arendt’s (1964, 1992, 2003) conception, judgement constitutes society and situates the judging actor within society. Judgement is an interaction with others, a form of communication, and so sustains society (Beiner 1992); judgements constitute and maintain a common intelligibility of the world and values (Arendt 1992; Beiner 1992). The judging person takes into account the standpoints of others: “one weighs the possible judgments of an imagined Other, not the actual judgments of real interlocutors”, as Beiner (1992, 92) specifies.

Debates, then, are important, because they are processes of constituting and re- performing meaning (Beiner 1992). They constitute meaning transcending time for both society and individual human beings (Beiner 1992). According to Arendt, the function of judgement is to assimilate “in a humanly intelligible way whatever most strenuously resists such assimilation. Judgment brings its objects of judgment within the reach of human meaningfulness” (Beiner 1992, 99). With this

173 in mind, judgement constitutes a commitment to a community and its worldview and so stabilises society (Beiner 1992).

Put in a different way, judgment involves a choice of whose company one wishes and thus has a society building function (Arendt 1992; Beiner 1992). That is, “judgment has the function of anchoring man in a world that would otherwise be without meaning and existential reality” (Arendt 1992, 152). In her later works,

Arendt depicts judgement as a personal capacity that concerns the whole body and mind of an individual (Arendt 1992; Beiner 1992). Via Kant, she links the faculty of judging to taste. Taste, she argues, is overwhelming and immediate. As such, it is unspeakable and has to be liberated from the limits of private sensing (Arendt

1992; Beiner 1992). In contrast to thinking, judgements of taste do not claim universal validity, but appeal to a community (Arendt 1992; Beiner 1992). In

Arendt’s conception of judgement, then, the indifferent being is the most dangerous, because it implies that the individual does not care about whom it is living with (Arendt 1964; Beiner 1992):

In the unlikely case that someone should come and tell us

that he would prefer Bluebeard for company, and hence as

his example, all we could do would be to make sure that he

would never come near us. But the likelihood that someone

would come and tell us that he does not mind and that any

company will be good enough for him is, I fear, by far

greater. Morally and even politically speaking, this

indifference, though common enough, is the greatest

174 danger. And in the same direction, only a bit less dangerous,

does this other very common modern phenomenon lie, the

widespread tendency to refuse to judge at all. Out of the

unwillingness or inability to choose one’s examples and

one’s company, and out of the unwillingness or inability to

relate to others through judgment, arise the real skandala,

the real stumbling-blocks which human powers cannot

remove because they were not caused by human and

humanly understandable motives. Therein lies the horror

and, at the same time, the banality of evil (Arendt, cited by

Beiner 1992, 113).

The banality of evil, as Arendt terms it, consists in the refusal to judge (Arendt

1964; Beiner 1992). Beiner concludes thus that “the responsibility for making judgments cannot be shirked […]. Judgment must be free, and the condition of its autonomy is the ability to think” (Beiner 1992, 101).

Arendt recognises the dangers of pre-given moral value and argues for personal judgement but for a different reason than Deleuze. Contemporarily, judgement is important, because society witnesses a ‘moral collapse’, Arendt asserts, in that there is no longer a pre-given universal rule, which is why judging becomes important (Beiner 1992). Beiner (1992, 111) explains that categories are dangerous in that they foreclose the richness of particulars and that the “fixed habits of thought, ossified rules and standards” hinders us from opening

“ourselves fully to the phenomenal richness of the appearances”. In her book on

175 Eichmann, Arendt outlines that transcendental rules foster the habit of following orders — whatever they might be — rather than the continuous evaluation of one’s decisions and actions (Beiner 1992). In contrast, people who are sensitive to the tensions that they are constantly ‘resolving’, develop a tendency to think

(Beiner 1992). Beiner (1992, 109) explains that thinking becomes important

“because those who possess the capacity for critical thought are not swept away unthinkingly”. The habit of thinking lessens the likelihood that people simply accept an overturn of moral values and/or the replacement by a new set of values

(Arendt 2003). I explore the importance of thinking for fostering habits of evaluation further below in more detail.

Following Arendt, I suggest that the capacity to evaluate is important in order to avoid the banality of evil; whereas judgement encourages the tendency to follow orders blindly by fixing values as universal standards. This danger of fixed standards is illustratively exemplified with the list of illegal torture techniques provided to the CIA and that implies that any other technique is without moral or legal issues. Former President

Bush’s 2007 order enabled the agency to resume a form of

the program by specifically listing what sorts of prisoner

abuses counted as war crimes. That made it safe for

interrogators to use other tactics, like extended sleep

deprivation that were not on the list (Savage, 2017, no

pagination).

176 Similar to the case of Eichmann, extraordinary rendition raises the question of how to account for the inability of some people to judge right from wrong

(Arendt 1964; Beiner 1992). Given standards of judgement lessen the habit of thinking and this also affects judicial proceedings. Standardised rules lead judges to assess if the standards are achieved or not without questioning the structures that lead to the judgement nor the standards themselves (Lefebvre, 2008;

Mussawir, 2010a). Lefebvre (2008, 158) describes this particular function of the law: the “state of affairs is presented to a judge” and then, a “rule must be selected to make a legally relevant determination of the facts”. Similarly, Mussawir (2010a,

313) criticises this reduction of the judge’s function “to a kind of passive receiver of essentially executive governmental information or advice.” He (2010a) further points out that standardisations imply that every judicial case is pre-judged on pre-given criteria independently from the case’s intensities.

I suggest that Deleuze’s ethical evaluation avoids the banality of evil in terms of ‘simply following orders’. Deleuze’s conception of ethical evaluation and his criticism of judgement and Human Rights as given standards promote situational assessments based on the beings’ immanent mode of existence

(Deleuze, 1998a; Lefebvre, 2008; Mussawir, 2011; Smith, 2007). Yet, how can I use a Deleuzian approach, when he is supposed to ‘have done with judgement’

(Deleuze 1998)? Following Mussawir (2011), Lefebvre (2008) and Smith (2007), I argue that Deleuze is against the dogmatic image of judgement. Deleuze is against judgement insofar as it denotes “a subordination of the power of thought to the moral forms of the ‘true’ and the ‘good’ and also a subordination of differences of thought to an abstract form of representation” (Mussawir 2010b, 469). In contrast,

177 Deleuze aims to replace the transcendental moral categories of good versus bad by immanent evaluations based on the mode of existence (Smith 2007). While there seems to be a reluctance to use Deleuze for research relating to forms of judgement, Mussawir (2011) and Lefebvre (2008) are two notable exceptions to this trend and they point out the rich contribution of such an approach. I draw upon both to conceptualise the creativity within judicial structures and the importance of the capacity to evaluate within judicial proceedings. Emphasising the creative function of judicial judgement, Lefebvre (2008, 103) writes, “a judge never subsumes but instead always brings a rule into existence”. Mussawir

(2010b) and Lefebvre (2008) highlight that Deleuze’s aversion towards a fixed image of judgement does not extend to evaluation or jurisprudence.

I suggest that analysing the actors’ capacity to evaluate allows grasping the importance of various actors’ decisions and actions within judicial proceedings.

Smith’s (2007) depiction of ethical evaluation is fruitful to conceptualise evaluation as an immanent capacity depending upon an internal and external milieu. He explains that the issue with judgement is that it introduces an external valuing of feelings, thoughts and actions, such as obedience being more highly valued than defiance (Smith 2007). It is an external and imposed ranking of affections, whereas ethical evaluation does not rely on externally given standards

(Smith 2007). External standards are problematic, because everyone has a different assemblage of affections that lead to different desires (Smith 2007).

Deleuze is concerned with the fact that given standards hinder individuals to think about their own capacities and how to increase them (Smith 2007).

178 I propose to use Deleuze’s concept of evaluation, based on the immanence of beings, to bypasses some of the tensions Arendt runs into. Arendt could not resolve productively the divide between active and passive capacities and the divide between the private, personal and the public realm, as Beiner (1992) argues. While her earlier writings were on judgement in public, she ended situating judgement in private life and cutting it from the public realm. This, Beiner

(1992, 140) assesses, led to her later description of “the nature of judging” resulting “in a much narrower (and perhaps less rich) concept of judgment”. In contrast, an approach that emphasises the immanence and conceptualising the individuation of human beings and their capacities allows grasping the tension and productivity of the disparity between the political and personal, of the external and internal, which constitute the capacity to evaluate.

‘We’ are constituted by multiple affections constituting ‘our’ desires and which interpret our world (Smith 2007). The desires are forces affecting our being, before and beyond our intentions and conscious and unconscious interests and are concurrently individual and structural (Smith 2007). Put differently, one’s affections are arranged by social institutions, that is, by external forces. Smith

(2007) expands upon this notion by tracing the efforts of scholars to make sense of these unintentional forces in terms of external structures (Marx) and internal structures (Freud) and explains that Deleuze rejects their one sided views by affirming that external and internal forces are one. The affections and the resulting desires are deemed “what is most individual about you, are themselves economic, they are already part of what Marx called the infrastructure” (Smith 2007, 71). I argue that, in Simondonian terms, personal capacities are always already part of a

179 collective, through collective individuation, while at the same time they are also personal, through psychic individuation. The multiple human and non-human beings affecting an individual never exist freely, but are arranged by social institutions. Thus, to assume that change can simply be willed is to overestimate the power of consciousness (Sharp 2011).

Evaluating takes time, in which the ‘object’ of evaluation, the milieu, and the evaluating actor modulate. The problem with the conventional approach to evaluation is the presumed fixity of the self as well as that of the object. The important point “is that, during the entire time the deliberation is going on, the self is constantly changing, and consequently is modifying the feelings that are agitating it” (Smith 2007, 72–73). While the self is modulating, the ‘options’ transforms as well, so that eventually one option becomes integrated with the self:

all the time that the deliberation is going on, the self is

changing and is consequently modifying the (often

unknown) feelings that agitate it. A dynamic series of states

is thus formed which permeate and strengthen one another,

and which will lead by a natural evolution to a free act.... In

reality there are not two tendencies, or even two directions,

but a self which lives and develops by means of its very

hesitations, until the free action drops from it like an over-

ripe fruit (Smith 2007, 73) .

180 Smith (2007, 72) offers the example of choosing either to join friends at a bar or work, noting that “in fact these two options are not isolatable ‘objects’ but rather two drives, or […] ‘inclinations’ of the soul.” The important aspect here is that

Smith’s (2007) elaboration allows to grasp that these macro-choices are the effects of complex compositions of minute affections. In his (2007, 72) words, “drives or motives are not simple things, but rather complex ‘orientations’ or ‘tendencies,’ each of which integrates within themselves a host of what he liked to call ‘minute perceptions.’” Each object of evaluation is a complex composition of “auditive, gustative, olfactory, and visual perceptions, an entire perceptio-inclinatory ensemble” (Smith 2007, 72). This multiplicity of the choice-object is crucial in that

‘we’ ourselves are complexes, so that the ‘choice’ plays in unpredictable ways to several of ‘our’ constituting affections. Smith (2007, 72) thus concludes, that

[n]ot only are all of us constituted by a multitude of

unconscious drives, each drive is itself multiple, an infinite

complex of minute perceptions and inclinations. It is these

drives and motives that constitute the very tissue of the

soul, constantly folding it in all directions.

If ‘we’ are in continuous tensions, because of different affections constituting ‘us’ and our desires (Smith 2007), where then, is our range of freedom? Evaluation is grounded in ‘our’ capacity to transform: it requires the possibility to go one way or the other (Lefebvre, 2013; Smith, 2007). Human beings are constituted by a multiplicity of affections pushing and pulling beings

181 concurrently in different directions (Deleuze 1988b), so that “these drives are in a constant struggle or combat with each other” (Smith 2007, 69). When these minute tensions reach an intensive threshold, become visible and allow evaluation to take place, they render the range of agency visible (Smith 2007). It is within a disequilibrium that our active capacities can take sides: in Smith’s (2007, 70) words, “my conscious intellect is taking sides and associating itself with a particular drive.” It is then that reason can choose which inclinations to follow:

“The question of decision is: On which side will I ‘fold’ my soul? With which minute inclinations and perceptions will I make a ‘decisive’ fold?” (Smith 2007, 72). In sum, I have set out so far that habits of thinking and evaluating are fluctuating and require cultivation. Importantly, the capacity to evaluate refers to the individual’s own increase and decrease of capacities. The implication is that torturing does not increase one’s capacities but decreases that of the victim.

I propose combining Arendt’s insights about the importance of judgement outside of rule (Beiner 1992) and Deleuze’s (Smith 2007) ethical evaluation to conceptualise the capacity to evaluate. Following Deleuze’s (1988b) depiction of knowledge, I suggest that evaluation is not based on inherently different ideas, but upon a specific form of relations between ideas. Evaluation is constituted by multiple and co-existing ground-ideas doubled by reason-ideas assessing cause- and-effect relations of ‘our’ increasing or decreasing capacities.

The capacity to evaluate is situational and depends upon minute, perceived, and unperceived affections in both body and mind. These minute affections constitute the capacity to evaluate ‘objects’ with regard to their agreement or disagreement with one’s bodily and mental dispositions (Deleuze 1998; Hynes

182 2015). As Smith (2007) outlines, the capacity to evaluate is constituted by the very tension between internal and external affections. The milieu, the object of decision, and the evaluating actors are thus modulating and potentially changing (Smith

2007). It follows that evaluating the effects of committing abuse or not upon one’s capacities does not involve a single object but an intricate complex of perceived and unperceived affections. The evaluation is not simply about abuse, but plays upon a multiplicity of affections and is strengthened or weakened by multiple affections.

In plain words: to torture someone creates the stuffiness of the room, the smell of blood, sweat, urine, a tension in the torturers’ whole body, and so on, that at times are more align with forces pushing towards abuse and at other times against abusive behaviour. This multiplicity of an object of choice recalls as the interrogator Damien Corsetti’s quote from Chapter 1 of being drunk on power. In the quote, he outlines that while he was not forced to abuse prisoners he had been put in a position of immense power over the prisoners despite or exactly because of his young age and lack of maturity. Jennifer Bryson’s quote from Chapter 1 vividly describes the transformation of her evaluation process: she describes the different force she felt when deciding to allow music bombardment or not, and how these various forces eventually led her to decide against it.

In Simondonian terms, the capacity to evaluate is embedded in an exterior and interior milieu and is concurrently psychic and collective. As such, evaluations, like Arendt’s judgement, are sense-making and constituting society, while simultaneously constituting the individual human being. Meaning is embodied and

183 re-performed in and through every actor’s decisions and actions. In this sense, judicial proceedings affect the possibilities of evaluating.

Since human beings and their capacities modulate, the pressing question concerns how we might increase the capacity to evaluate. The capacity to evaluate of beings is bound to their modes of existence, which raises the question of how people can become active instead of reactive (Smith 2007). More precisely, the question becomes ‘what allows one to assess the quality of an evaluation?’ For, as

Smith (2007) points out, many people fear that without recourse to transcendent principles there will only be subjectivism or relativism.

As Arendt’s concept of judgement eludes to, it is thinking that determines the quality of evaluation, rather than knowledge. Arendt raises the problem of distinguishing qualified versus ‘uninformed’ judgement and argues that thinking is essential for an informed judgement (Arendt 1964; Beiner 1992). The quality of an evaluation depends upon the capacity to think, so that the “inability to think has fatal implications for the faculty of judging” (Beiner 1992, 101). Thinking allows taking on the standpoints of others and the more different standpoints one takes, the more ‘valid’ one’s opinion becomes (Arendt 1992; Beiner 1992): “[t]he more people’s standpoints I have present in my mind […] the stronger will be my capacity for representative thinking and the more valid my final conclusions, my opinion” (Arendt, cited by Beiner 1992, 107). Importantly, she notes that thinking loosens the grip of universals and allows apprehending the richness of the particular (Arendt 1992; Beiner 1992). Arendt argues that judgement has to be freed through thinking from supposedly prior relations, because the ability to think comes from being free of connections. The approach to evaluation I have

184 been developing conceptualises mental faculties as immanent to, and thus affected by, their exterior and interior milieu, so that accordingly, no capacity can ever be without relations: that is, thinking cannot be freed of relations. However, Arendt’s argument for the importance of thinking is not incompatible with the approach outlined here.

The question becomes ‘how can thinking improve evaluations in non- representational terms?’ Thinking seen through an affective lens is a means to unsettle already made connections as well. Thinking, or critique to use Anderson’s

(2014, 75) term, is necessary, “because it shows the fragility of things, but also because it describes specific relations of power and the precise operation of the apparatuses through which affective life is mediated”. Anderson (2014, 74) uses the term critique and describes that it is “a practical activity and […] a permanent disruption that must agitate, unsettle and ultimately break with modes of thought.”

Anderson (2014, 74) expands on this notion and explains that critique is a means

“to bring a seemingly settled apparatuses to crisis”. In Simondonian terms, thinking combines two disparate systems; it is a temporary re-solution of a tension. Thinking is triggered through encounters, when habit is no longer able to assimilate information of an encounter (Lapworth 2015a). Thinking, then, is not freeing ideas of their connections but opening up space for novel connections. It is an active, but not necessarily conscious capacity that concurrently de- territorialises and re-territorialises ideas.

The political implication of an affective approach to the capacity to evaluate then is twofold: it proposes, firstly, fostering a social structure promoting ethical evaluation and individual responsibility and, secondly, fostering capacitating

185 affections that allow for habits of evaluating. ‘We’ have to re-enforce the affections that increase ‘our’ capacities. I have suggested in this chapter that habits are constituted and re-performed in everyday practices and are not necessarily conscious. Since ideas require a fertile environment to take root and thrive (Sharp

2007, 2009), a milieu that favours the idea of individual responsibility is important to increase the tendencies towards thinking, evaluating and so to realise one’s range of agency that constitutes the capacity for responsibility. I thus proposed to re-formulate judicial proceedings in terms of an institutionalised system of evaluation that highlights that performing judicial proceedings involves actors enacting judicial structures and that it profits from actors’ increased capacity to evaluate. This re-formulation allows us to grasp that judicial proceedings not only rely upon the responsible perpetrators but also affect and constitute this subject status. It further suggests that the varying capacities of all the actors engaged in the practice to feel, think and act need to be taken seriously.

Consequently, a system of evaluation should not ask ‘what should this person have done in the situation?’ but ‘what could he/she have been capable of doing?’ (Smith 2007). The difference might seem slight, but it is fundamental. The first question implies a fixity of standards applying unchangingly to everyone in every situation and constituting a straightforward subsumption. The second one demands re-embedding judgement within situations dependent on both the actors’ dispositions and circumstances. It raises questions about the range of freedom the individual being had in the debated and specific situation. This re-formulation fosters the attention to one’s capacities and power of action in that it asks “what are my capabilities and capacities? How can I come into active possession of my

186 power? How can I go to the limit of what I ‘can do’?” (Smith 2007, 67). In Smith’s

(2007, 68) words: “[w]hat an ethics of immanence will criticize, then, is anything that separates a mode of existence from its power of acting—and what separates us form [sic] our power of acting are, ultimately, the illusions of transcendence.”

Moral judgement with its transcendental value standards demands the impossible, whereas Deleuze’s re-conceptualisation asks for ‘what can be done?’ And ‘what is the range of agency?’ (Smith 2007).

I suggest conceptualising thinking and evaluating as activities of the mind that require power of action, rather than passive affections. Thus, the cultivation of affections increasing one’s capacities is crucial. The implication is that what is right or wrong in extraordinary rendition is to be evaluated based on the immanent evaluation of existence – and not based on unchanging external standards. The question, then, is how the actions and decisions of perpetrators affect the immanence of their existence: does a given action ‘increase or decrease the actors’ capacities?’ I suggest that a milieu deprived of stimuli tends to lead to a decreased capacity to think and evaluate. Prisoners are then more easily subjected to ideas of helplessness and futility, while perpetrators are more easily lead to follow orders

‘blindly’. Consequently, failing to evaluate based on the immanence of the mode of existence is akin to renouncing one’s agency, to the detriment of society; non- evaluating constitutes the banality of evil. This is why it is so shocking when a guard states: “‘I’m just doing my job. I don’t think it’s my place to judge them

[brutal guards]” (a guard, cited by Khan 2008, 204).

Thus, I suggest that it is crucial to increase perpetrators’ capacities to evaluate. The capacity for ethical evaluation is important to avoid Arendt’s banality

187 of evil. Perpetrators are subjected to affections and are neither free nor predetermined. Their capacities to evaluate their actions, to participate or not in beatings of prisoners, as well as the evaluation of their superior’s statements, orders and their interpretation of these orders is always particular dependent on the individual beings’ interior milieu as well as the exterior milieu, past and present affections. To clarify, thinking, as basis for evaluation is not rationalising upon an action or decision, but the creative de- and re-coupling of ideas. Positive, agreeing compositions of ideas or bodies lead to stronger ideas or bodies. As Smith

(Smith 2007, 67) explains, “[i]n Spinoza, for instance, an individual will be considered ‘bad’ (or servile, or weak, or foolish) who remains cut off from its power of acting, who remains in a state of slavery with regard to its passions.

Conversely, a mode of existence will be considered to be ‘good’ (or free, or rational, or strong) that exercises its capacity for being affected in such a way that its power of acting increases, to the point where it produces active affections and adequate ideas”. The focus lies on one’s own capacities and not on that of others, that is, instead of weakening 'competing' beings. As I hinted at earlier, then, a torturer by hurting the prisoner is weakening the prisoner’s capacities, but not increasing his or her own power of action.

In summary, this chapter has argued for re-conceptualising judicial proceedings as an institutionalised system of evaluation, rather than subsumptive procedures based on a given set of moral or legal standards. It underscores that the actors’ capacity to evaluate is essential in judicial proceedings and conversely that the capacity to evaluate is affected by ‘exterior’, social structures, such as judicial proceedings. It enables us to understand that to prevent these ethically

188 dubious practices changes in habits as well as in social structures are required. The thesis therefore argues that a focus on human capacitation opens new possibilities for evaluating and altering the habits and structures that constitute the capacity to evaluate or, conversely, the inability that enables ethically dubious practices.

4.4 Analysing Extraordinary Rendition

Extraordinary rendition provides a rich case study to illustrate the minute and intensive transformation in human beings’ capacities to feel, think and act. I have drawn upon the practice not simply as an example upon which I apply the developed approach, but rather, to inform this affective approach. As an extreme practice, extraordinary rendition raises questions about the conceptions of human beings and judicial proceedings and constitutes a rich source of data to develop this approach. Its extremeness also renders the intensities of social experience and their almost infinite causality visible. Extreme or unusual cases are fruitful for emphasising aspects that would have been overlooked in a typical case (Stake

1995) and may also make perceptible the affective reverberations of events, which not only affect the actors directly involved but have broader subjective and social repercussions. Extraordinary rendition is extreme with regard to the experiences of the actors involved and the ad-hoc implemented Military Commissions and its extreme character highlights the importance of evaluations both within and of extraordinary rendition.

With such a focus, my thesis requires a form of research that is attuned to the minute affective events of everyday life and which understands the subjects of the research as effects, rather than causes, of such events. Dewsbury (2010) uses

189 the term ‘performative research’ to denote an affective and non-representational methodology, which emphasises the ongoing constitution of meaning all along the process of research. Performative research “advocates resolute experimentalism”

(Dewsbury 2010, 321), since “the point is that performative, non-representational and affect-based research is all about cutting into the ‘dogmatic image of what counts as thought’” (Thrift, 2004: 81) and destabilizing the ‘know-and-tell’ politics of much sociological methodology” (Dewsbury 2010, 321). This is not to say, however, that performative research is arbitrary. Performative research is not about “anything going”, because it has to be paralleled by “problematizing how we think the world and how the world forces us to think, in attending intensely to the fluid, nervous, fleshy dispositions of our body’s agency, and in how the world records itself (Dewsbury 2010, 332). It requires being attentive to one’s own presuppositions, to “expose our presuppositions to be tasked to that disruptive rethinking again” (Dewsbury 2010, 331). As I argue throughout the thesis, the aim is to re-evaluate how extraordinary rendition affects the actors involved and thereby attend to its effects on prisoners beyond the actuality of torture, its effects on those perpetrating the practice, as well as the witnessing actors and society in general. Extraordinary rendition exceeds the duo of victim-torturer. It is exactly because extraordinary rendition exceeds this dualism that a performative research that does not start from categories is required; this approach allows for an analysis sensitive to the varying intensities.

Consistent with a non-representational or performative approach, I do not privilege the face to face form of the interview as a form of data collection. Rather, it is the question of the mode of attention that is crucial. In each case, then, my

190 focus is less on the representation of happenings or the subjects to which things happen, then on lived intensities. More interesting for this study than the finished human being, the determined legal status or determined exceptionality of the practice, are the lived micro experiences of extraordinary rendition, which allow one to grasp the multiple interior and exterior forces affecting human beings and their capacity to evaluate. Focusing on the prisoners’ ordeals and their lawyers’ and activists’ work, it is in this regard that an in-depth analysis is useful to draw out the complexity of everyday practices (Mutlu 2010).

I have drawn on two methods of empirical data collection to foreground the lived experience of extraordinary rendition and its effects on evaluation: archival case studies and in-depth interviews. The aim of non-representational approaches and their advantages are to “invent new ways of addressing fundamental social scientific issues and, at the same time, displacing many of these issues into new areas and problems” (Anderson and Harrison 2010, 2). This in-depth approach to archival data and interviews, then, allows to get “embroiled in the site” and to allow the ‘observer’ to “be infected” by the efforts and investments “of the particular practice or experience being investigated” (Dewsbury 2010, 326).

Performative research is always a “practical engagement we as researchers have with the world” (Dewsbury 2010, 328). This imbrication is essential to grasp the intensities of the situation and allows a “present-moment focus” (Dewsbury 2010,

322). This approach, then, emphasises the minutiae of research practices and does not shy from the affections that I as researcher inevitably bring to my engagement with my interviewees and archival documents. With each document and interview

191 the thesis did not “become more ‘whole’ but more complex and multiple in its implications” (Dewsbury 2010, 329).

Case study data from archival work is invaluable when the aim is to explain the functioning of a practice (Cousin 2005; Hammersley 2012; Noor 2008). It allows an exploratory frame of mind and a degree of nosing around (Cousin 2005).

As Dewsbury (2010) points out, the experimental aspect is essential in performative research. In my case, NGOs such as ACLU, Amnesty International,

Reprieve, or The Rendition Project have proven to be rich sources of information.

Another important source of documentation is judicial proceedings, such as the lawsuits filed before different US district courts, the US Supreme Court, and the

ECHR. Especially the cases of El-Masri, Zubaydah, and al-Nashiri have yielded abundant legal documents. Some governments and the EU have further conducted investigations yielding important information. For some time it has been recognised that the author’s affections suffuse their texts (Dewsbury 2010).

Knowledge is not ‘merely the transmission of information’ (Dewsbury 2010); it is always a transforming act. With this in mind, then, judicial texts were not approached as neutral facts. Rather, I suggest that a performative approach to the research enabled me to grasp these sources in their fertility and affectivity. These sources, then, as well as the statements that some prisoners, such as Hicks,

Errachidi, or Slahi, have made in the media and in books, are rich in details and their statements are obviously a rich source of the minute affections of prisoners.

Despite extraordinary rendition being a ‘secret’ practice, there is much information available, as this thesis demonstrates. For one, the legal cases extensively document the judicial functioning as well as the prisoners’ ordeals. The

192 legal documents illustrate the embodied work of litigating as well as the potential within judicial procedures. The prisoners’ accounts found within legal documents as well as elsewhere, are striking in their seeming factuality. The interviews, on the other hand, provided a visceral entry point to grasp the intensities at play behind the neutral-looking documents. Reading the prisoners’ descriptions and listening to the interviewees’ accounts in combination increased my sensitivity to these at first seemingly innocuous experiences and, over time, allowed for grasping the intensity of these experiences.

I further conducted in-depth interviews with Human Rights lawyers and investigators.13 The interviewees were involved in research work for public records, governmental inquiries, as well as for legal claims. Through a snowballing principle I gained access to various lawyers who worked or are still working on extraordinary rendition cases in places as different as Australia, Europe, and the

US. Other interviewees were or still are involved in organisations such as Amnesty

International, Human Rights Watch, or The Rendition Project, and provided crucial work in documenting extraordinary rendition and defending the prisoners’ rights.

While the lawyers provided invaluable insights into the difficulties and potential of court room litigations on the US mainland, Gitmo, and Europe, the investigators documented the immense work upon which legal claims build. While many of my interviewees were lawyers or legal scholars a few interviewees were investigators with a different background. Also, their conceptions of how best to protect and to promote Human Rights, and therefore their practices of activism, differed greatly.

13 Thanks go to my co-supervisor, Professor Fernandes Clinton, who provided me with the first contact to lawyers and high-ranking NGO employees.

193 My interviewees enabled me to not only witness but to engage in a felt experience of the affective transformations of both the involved human beings and judicial proceedings. The in-depth nature of the interviews was crucial to teasing out my interviewees’ experiences and their conception of the situation

(Minichiello, Aroni, and Hays 2008). Likewise, the in-depth interview method avoids the pitfalls of using pre-given categories and enables interviewees to express their own views and make their own connections. The interviews thus provided insight into the interviewees’ feeling, thoughts, and actions and how the interviewees situate these experiences within the context of their contact with prisoners, Guantánamo Bay as a distant island to travel for work, and the frustrations and complexity of working through huge amounts of data. A major advantage of the interviews was to emphasise that indirectly involved actors are affected by the prisoners’ experiences and the perpetrators’ behaviour, and so, to underscore the argument I present, namely, that extraordinary rendition has effects beyond the direct prisoners and perpetrators. Within an affective and non- representational approach, this aspect is crucial. Dewsbury (2010, 323) stresses that “implicitly we accept and enact the fact that our choice of mode of speech, what we deem to be worthy of visibility, maintains existing, or produces alternative, intelligibilities”. In order to nonetheless steer the interview, I combined the ‘story telling’ model with the ‘recursive model of asking questions’ and consequently, each interview was unique (Minichiello, Aroni, and Hays 2008).

The interaction, while reduced to a minimum, was a situational act encounter guided as much by the pre-thought questions as by the intensity of the micro feelings, thoughts and comments during the interview. To understand the sense-

194 making processes of my interviewees it was necessary to leave them as much space of expression as possible. In addition, in-depth interviews are invaluable to transmitting the viscerality of personal accounts (Minichiello, Aroni, and Hays

2008). My interviews, then, were essential in unsettling my own ‘economy of knowledge’ (Dewsbury 2010) and in unsettling restrictive habits of thinking. As

Dewsbury writes, “setting forth on actually conducting a piece of research […] it should be immediately apparent that one has already begun researching by implicitly setting up research questions in relation to an economy of knowledge”

(Dewsbury 2010, 323).

I used the snowball principle as a means to gain access to this ‘hard to identify’ and ‘hard to get at’ population (Minichiello, Aroni, and Hays 2008). This snowballing approach had the advantage of pacing out my interviews, which enabled me to intertwine the theorising and empirical data gathering more strongly. This interrelation of theory and methodology is essential (Dewsbury

2010). This constant re-theorising that Dewsbury (2010) stresses led to

‘unsuspected links’ and shifts in my questioning and subsequent research and enabled me to re-adapt and re-think questions for subsequent interviews in light of the transformations in thinking that I underwent in light of the encounter. This emphasis on self-transformation is essential with regard to Deleuze’s (1988a) claim that one should create concepts rather than use categories and certainly the thesis aimed to create and adapt concepts rather than reproduce categories in order to aim to articulate the complexities of extraordinary rendition and its wide ranging effects.

195 Despite using established data gathering methods, my approach provides a novel way to think about the practice of extraordinary rendition with regard to how it functions, why some people participate, and the effects of the practice on directly and indirectly involved actors. In-depth interview and case study methods have a long tradition, yet this does not preclude their use for performative research. ‘Background’ forces are everywhere and there is no means that comprehensively catch intensities. Instead, it is important to give intensities room to develop and affect the researcher without the restrictions of pre-given categories. The combination of archival work and interviews within a non- representational approach demonstrates that these established methods can open up the field of research through raising novel questions and insights. I used these methods in a performative way, which aimed at drawing out the ‘hum’ of on-going activities of interviewees and within judicial proceedings, as well as triggering my own thinking. Opening the researcher’s own mind to novel associations is crucial, as research is not “a one way street running from the actor to the acted upon, from the active to the passive or mid to matter, but as a relational phenomena incessantly looping back” (Anderson and Harrison 2010, 7).

In addition, combining interview methods with archival data was productive, in that it allowed grasping some of the forces leading to the interviewees’ thoughts and actions. A non-representational approach allows to address the issue of the divide between the world and its meaning through the conception of “thought-in-action” (Anderson and Harrison 2010, 6). In Anderson’s and Harrison’s (2010, 7) words, even if “we do not consciously notice it we are always involved in and caught up with whole arrays of activities and practices. Our

196 conscious reflections, thoughts, and intentions emerge from and move with this background ‘hum’ of on-going activity.” It follows that “when asked about [ones’ thoughts and actions], we may struggle to explain” (Anderson and Harrison 2010,

7). It is crucial, then, to let the interviewees express themselves and cross- reference their ‘explanations’ with a wide range of data. The combination of the research methods allowed thus a visceral experience of the importance of the capacity to evaluate and the surprising and wide-ranging effects that extraordinary rendition has. However, these methods and the scope of the thesis do not provide a means to evaluate how best to cultivate the capacities for responsibility.

The cases analysed in this thesis were chosen on grounds of the available documentation and the interviews. The issue of choosing and defining ‘similar’ cases, (Tight 2010) was tackled by using the interview data as a base for including or excluding specific ordeals. This was especially relevant in this case due to the lacking official definition of extraordinary rendition. The snowball principle allowed to circumvent and to leave the definition of extraordinary rendition and its relevant cases to my interviewees. At the same time, the court documents are important to judge the litigation processes, while the reports of the prisoners’ experiences are crucial to analyse the framing of responsive prisoners. Some cases, then, were predominantly chosen due to the amount of accessible information, while others were chosen based on my interviewees’ knowledge. The chosen ordeals are similar and yet diverge with regard to the specific features of their extraordinary rendition and litigation ordeals.

197 Chapter 5

Prisoners’ and Perpetrators’ Capacities

This chapter fleshes out the visceral affections involved in the day-to-day operations of extraordinary rendition and demonstrates the parallel manner in which prisoner’s mental and bodily capacities are affected. As I elaborated in the last chapter, a focus on the affections that give rise to the capacities of individuals to feel, think and act provides an indispensable window onto the complexities of a practice such as extraordinary rendition. Viewed from the point of view of bodies and their ‘mixtures’, as Spinoza (1994) puts it, it becomes possible to understand the subject of extraordinary rendition productively. When a body acts upon another body, the affection produced signals the variable capacities of bodies, and indeed ideas, in relation. The crucial point is that it is not ‘a subject’ who ‘has’ variable capacities, or who suffers a variation in their power of existence when

‘his/her’ body is acted upon by another body. Rather, the subject of extraordinary rendition is the product of the parallel variation in bodies and minds that this very visceral practice gives rise to. Grasping the productive nature of such practices is crucial to moving beyond the evaluation of the practices of extraordinary rendition in terms of the reduction of subjectivity, as though the practice were nothing more than a removal of the rights of a being whose status as a subject is treated as given and natural.

One important implication of this perspective, which I explore in this chapter, is that the prisoners’ and perpetrators’ capacities depend upon their milieu as well as their individual dispositions. Related to this, the emphasis on the production of subjectivity through variations in the power of acting challenges the

198 evaluative frameworks commonly used to make sense of the practice. That is to say, the categories commonly used to make sense of extraordinary rendition, such as ‘torture’ versus ‘humane treatment’ or ‘resistance’ versus ‘compliance’ are too restrictive to understand how both the prisoners’ and perpetrators’ affections are modulated by the practice. I demonstrate that multiple affections shape the prisoners and perpetrators and that they do so in a manner that goes beyond the actors’ intentions. I argue that both bodily and mental capacities increase and decrease in unpredictable ways.

Section 5.1 analyses the ways in which the practices of extraordinary rendition produce variations in the affections of prisoners and demonstrates the inevitable, yet unpredictable, nature of the responses produced by the variations in power they undergo. Section 5.2 emphasises the mutually constitutive nature of the practices of rendition; both prisoners and perpetrators are subject to variations in their degree of power relative to their relation from one moment to the next. In Section 5.3, I focus on the different forces affecting the perpetrators, pushing them simultaneously for and against engaging in ethically dubious practices. Here I raise the question of the perpetrators’ capacities for agency, which constitute the basis of responsibility. In the last Section, 5.4, I point out the importance of fostering both the habit of evaluating and a milieu in which such evaluation might take place.

5.1 Affections Shaping Prisoners

Here my aim is, firstly, to analyse the multiple affections that prisoners experience and that affect their bodily and mental capacities. I describe the ways in

199 which perpetrators aim to de-territorialise their prisoners in order to produce an interrogation-torture responsive subject, and, in the second subsection, illustrate how prisoners respond to their treatment and their milieu. The multiple character of the affections produced through the practice lead to surprising effects on the prisoners’ bodily and mental capacities, which decrease and increase in often unforeseeable ways.

5.1.1 Producing an Interrogation-Torture Responsive Subject

The idea of the manipulation of prisoners emerged well before the war on terror and has been investigated since the 1950s (Anderson, 2014). At that time, the syndrome commonly referred to as ‘DDD’ was researched with regard to the question of how such a state is induced (Anderson, 2014), with a focus on, to cite

Anderson (2014, 52), the question of “how life is known, rendered actionable and intervened in”. Anderson stresses that in the 1950s, individual human beings tended to be conceptualised as systematic responses to their environment

(Anderson, 2014) and, in this sense, individuals were conceptualised not as self- contained, but as individual-environment entities (Anderson, 2014). This environment, he notes, became “the point of contact between interrogator and interrogatee” (Anderson, 2014, 63).

As Anderson also notes, one of the key shifts in thinking since this earlier research has been to move from viewing the subject solely as an effect of their environment, to see them also as an effect of its emotional topography (Anderson,

2014). The subject is viewed from lenses both “environmental and psychoanalytical” (Anderson, 2014, 66). In the contemporary war on terror

200 perpetrators manipulate the “detainees as affective beings” and use techniques that “shape the environment in order to affect prisoners, as well as act on the body directly” (Anderson, 2014, 68). DDD is now linked to the psychological idea of regression, understood as ‘a loss, a stripping away of what makes the subject a subject, and a return to a life separated from the prevailing habits and norms of action and reaction” (Anderson, 2014, 64). In its contemporary form, the interarticulation of the conditions of debility, dependency and dread “becomes a state that can be ‘inscribed in reality’ through physical violence as well as environmental manipulation” (Anderson, 2014, 66). Zevnik (2013) similarly notes that in the war on terror the prisoner’s body is invested with relationships, practices of control and domination between the interrogator and the prisoner.

The aim of detention and surveillance practices is to target the prisoner’s body in order to produce a prisoner who is responsive to interrogation without being liable to suicide (Zevnik 2013).

Anderson (2014) points out that with the shift away from the behaviourist assumptions guiding practices in the 1950s, the techniques to induce DDD have changed as well. The contemporary aim of such practices is to exploit that moment of ‘shock, the moment in which the subject and his/her experience of that world is exploded’, with the ultimate aim of shattering the prisoner’s sense of self and re- forming them as a responsive subject (Anderson, 2014). To put in the CIA’s terms, the perpetrators aim to break their prisoners’ selves by prolonging, for example, the shock of arrest (CIA 1988; DoA 2006; OLC 2004). As a former CIA agent puts it,

“[y]ou are looking to break their will, within a set of parameters that allows you to keep that person…as a credible source of information” (Stafford Smith 2007a, 45).

201 This sense of the effect of practices on the subject is evidenced in my own empirical research, such as when Human Rights investigator Interviewee A (2014) describes those practices oriented toward “prolonging the shock of capture, making sure that prisoners are completely reliant on their captors for food and shelter”. She expands on this by noting that the prisoners:

had their hand tied with plexi cuffs that are too tight, to

make them as uncomfortable as possible. Moving them to

different locations is just another way of disrupting the

person’s way of thinking, making sure that they are never

ever comfortable, they never relax, that they are always

questioning what is going to happen. So putting a sack over

someone’s head, making sure that they are sensory

deprived, is all part of the process. […] They take them to

different locations for a number of reasons, but one of them

is to keep the disorientation up. […] that was because they

wanted to scare them, but also prolong the shock of capture,

so that they be more compliant in interrogation before they

ended up in Guantánamo.

Anderson’s (2014, 65) analysis of DDD is useful in its denaturalisation of the victim-subject. Anderson’s aim is to trace through the changes in the conceptualisation of the production of debility-dependency-dread, from the behaviourism of the 1950s model to the more emotional image of the subject

202 orienting later models and practices. In pursuing this aim, Anderson highlights the conceptualisation of the subject that prevails in most analyses of practices of torture; to put it in his terms, the shattering of self that such practices aim to produce supposedly “disturbs and undoes an otherwise normal, coherent, subject.”

To put it another way, prisoners “are stripped of what makes them subjects”

(Anderson, 2014, 52). According to this conceptualisation, Anderson (2014, 52) notes, “what is produced through ‘debility, dependency, dread’ is an absence – the absence of a subject who can relate to his or her environment and make sense.”

This conceptualisation of practices of torture in terms of a reduction (to the point of absence) of subjectivity can be seen, for example, in Gregory’s (2006) analysis, which suggests that the aim of torture is to destabilise the prisoners’ identity.

Gregory (2006, 417) argues that the interrogation-torture techniques “deliberately ravage the body in order to ‘un-house’ the mind [...] ‘the anchors of identity’, become ‘unmoored’ so that the victim is marooned in a surreal ‘landscape of persuasion’ where everything becomes ‘tangled’.” Anderson notes the role of emotional manipulation in these practices, given the post-behaviourist tendency to view the subject as a being with depth and emotions. In the war on terror, he suggests, “the Muslim subject is stripped of everything that makes him or her a subject, but this is done through the production of shame alongside an environmental conditioning” (Anderson, 2014, 70).

I do not dispute the prevalence of this conceptualisation of the victim- subject as a being capable of becoming reduced through practices of torture, to the point of the eradication of subjectivity. Where I would like to extend Anderson’s analysis of this very historically specific conceptualisation of the victim of torture

203 as an emotional being with psychological depth, is to emphasise the productive character of subjectivity in this scenario. We could say that the subject of interrogation is produced through an active process of individuation. It is not a question of removing a natural status, but of the production of subjectivity via affective means.

The common practices of sensory deprivation and sensory assault provide a useful way of grasping what is at stake in this conceptual approach. With this in mind, I will briefly describe these two methods, which target the five senses directly or through the modification of the milieu. My aim is to highlight the deficiency of an understanding which, by assuming to know what the subject and its capacities are, fails to grasp the multiple affections that prisoners experience and their subject producing character.

The most common technique of sensory deprivation is to impair the visual sense, because it is considered to be the dominant sense in Western cultures

(Paterson 2009). In extraordinary rendition, perpetrators also use other techniques of deprivation, such as audio impairment and bodily restraint. In seeking to document the highly significant repercussions for prisoners of these often inconspicuous techniques, the organisations Physicians for Human Rights

(PHR) and Human Rights First (HRF) published the Leave no Marks (2007) report.

Here they (2007, 9) describe the repercussions that forced standing for “less than a day” can have. This technique “can cause ‘the ankles and feet of the prisoner to swell to twice their circumference,’ ‘the skin to becomes [sic] tense and intensely painful,’ and ‘large blisters develop which break and exude watery serum’” (PHR &

204 HRF 2007, 9). In addition, the prisoner “develops, ‘a delirious state… delusions and visual hallucinations.’

While it is the senses of the prisoners that such practices aim to impact, statements made by the prisoners of extraordinary rendition highlight that these techniques of affective deprivation have effects that go well beyond the five senses.

One example of the effects of movement deprivation leading to painful bodily injuries is Zubaydah’s account of forced sitting, as I mentioned in Chapter 3. In a similar instance, Errachidi’s shackles were so tight that they cut into his flesh and made taking them off almost impossible (Errachidi 2013); it took a full day to get them off (Errachidi 2013). In El-Masri’s case, which I described in Chapter 1, the court assessed that the aim of such practices is to generate feelings of anxiety, uncertainty, discomfort, and pain (Registrar of the Court 2012).

The second method commonly used in extraordinary rendition is that of sensory assault. The Leave no Mark report (PHR & HRF 2007) emphasises the effects upon the health of prisoners that seemingly innocuous assaults can have; it affirms that “[s]ensory bombardment with light and noise can inflict extreme mental and physical harm, whether it is used as a discrete interrogation tool or to disrupt sleep” (PHR & HRF 2007, 24). Beyond interrupting sleep, and ultimately producing sleep deprivation, such sensory assaults lead to the release of stress hormones, which increase the heart rate and blood pressure (PHR & HRF 2007).

They may also lead to ventricular arrhythmias and potentially life threatening electrical rhythm disturbances of the heart (PHR & HRF 2007). Sensory assault leads to distress, disorientation and “withdrawal from reality as a defense” (PHR &

205 HRF 2007, 25). Music or noise bombardment can lead to chronic tinnitus, ringing in the ears and hearing loss (PHR & HRF 2007).

I would like to focus on the manner in which such techniques function and in doing so, to move beyond the assumption that sensory deprivation is akin to subjective deprivation, even eradication. Rather, I would stress that sensory deprivation leads to the mobilisation of alternative affective capacities: when visual perception is impaired, other capacities are brought to the fore (Paterson

2009; Williams 2003). The body’s and mind’s de-territorialisations can result in excessive affections, because changed capacities require a reassessment of the novel situation (Harbin 2012). As Harbin (2012) explains, the awareness of one’s bodily limits leads to the prioritisation of one’s power and to the reassessment of one’s possibilities. In Spinozan terms, these reassessments imply an increased attention and sensitivity to one’s surroundings and the affections produced. This increased sensitivity, then, can lead to an affective excess. As Spinoza (1994) argues, excessive sensations demand attention, re-direct consciousness and so push other affections and goals aside. As I described through Deleuze’s (1978b) reading of Spinoza in the last chapter, the tensions arising from sensory overload have to be ‘fought off’.

What is important here is the ways in which perpetrators de-territorialise the prisoners through multiple and minute affections induced by means of deprivation and assault and that target the milieu and the prisoners’ body. To recall earlier discussion in Chapter 3 and Chapter 4, human beings are complexes of an infinity of subbodies and ideas, which implies that they are continuously affected by everything within and around them. With this in mind, it is crucial to

206 emphasise the viscerality of the practices associated with extraordinary rendition in order to demonstrate that affections exceed the categorisations commonly applied in the efforts to evaluate such practices; they are not easily rendered as torturous or humane, resistant or compliant.

I am stressing, then, the richness of prisoners’ affections, with the implication that the framing of prisoners starts well before the interrogation- torture room and does not end there. Extraordinary renditions’ transfers are an illustrative example for the richness of affections that a practice can induce, despite not being deemed ‘torture.’ These transfers are not simply a practice of rendering the prisoners to a place where they are ‘more likely than not to’ to be tortured. The effects of transfers are important to analyse, in and of themselves, and with an eye to the range of forms they take in extraordinary rendition. The various forms include transfers of “prisoners from one country to another, from one prison to another, from one prison block to another, from one cell to another, as well as to and from medical facilities and interrogation or torture rooms” (Khan

2008, 25). On this, the journalist David Rose (2004) points out the abusive qualities of forced cell extractions (ERF or IRF). He describes the manner in which one prisoner was “pepper-sprayed” in the face, which led the prisoner to vomit

“five cupfuls [sic]” (Rose, 2004, 71); afterwards, the prisoner’s beard, hair, and eyebrows were shaved (Rose, 2004). To recall Chapter 1, El-Masri’s vivid description of the transfer preparations illustrates how the excessive practice induce multiple affections of both body and mind. El-Masri (2006) vividly describes the physical violence of imposed moves and enforced stillness and how they generated anxiety, humiliation, and also feelings of futility. Similarly, Hicks

207 recalls the “major physical beatings” he suffered in Afghanistan, during transportations and “en-route to GTMO” (Hicks, cited by Leopold 2011, 5). As

Interviewee A (2014) argues, the transfers were used to disorient Hicks. While transfers aim to dehumanise and degrade prisoners by denying them control over their bodies, the transfers also constitute a strategy to disrupt bonds between prisoners (Gill 2009). For instance, Khan (2008, 25–26) explains that, “[d]etainees

[…] are moved every few months so that they are never in one place long enough to form friendships with the prisoners in adjacent cages.”

This example of the role of transfers eludes, importantly, to the parallelism of body and mind that Spinoza’s non-dualist (monist) conceptualisation posits. El-

Masri describes how the difficulty of breathing led him to panic, while Errachidi

(2013) eludes to the parallel affections of body and mind when he recalls that some prisoners were so scared that they vomited during their first interrogation.

His description indicates, too, how different affections enhance each other:

“[e]verything feels so much scarier when you cannot see” (Errachidi 2013, CD2, track 17). Decreasing affections lead to a lessened control over mental capacities, so that prisoners can be overwhelmed by their affections (Khan 2008; Sharp 2011;

Spinoza 1994). Khan (2008, 44) describes how one prisoner’s emotions “swung erratically between frustration and fear, amusement and despair. At times, he seemed resigned to his predicament, and at others he unleashed sudden tirades against the injustice of his captivity. Sometimes he laughed”. Conversely, Maher

208 Arar’s14 description of how his imaginings affected not only his mental health but also his body is very vivid: “[o]n three occasions, memories crowded my mind such that I thought I was going to lose control. I just screamed and screamed. I could not breathe, well after these occasions, and felt very dizzy” (Arar, cited by the

Committee on the Judiciary and Committee on Foreign Affairs 2007, 38).

The relevance of conceptualising the parallelism of prisoners’ affections is that it allows us to more adequately grasp the manner in which perpetrators constitute an interrogation-torture responsive subject. Where a dualist conception of the subject posits a causality that flows from mind to body, Spinozan parallelism allows a more complex grasp of the relation between the variation of ideas and bodies. While it does not reverse the causality (it is not that bodily encounters cause ideas, but that the two occur in parallel), it does enable us to appreciate that the reduction of encounters and thus the diminution of affections might reduce thinking (Deleuze 1978b; Sharp 2011; Spinoza 1994). In this respect, Anderson’s emphasis in his analysis of DDD on the fact that the prisoner “loses his/her normal capacity to function” is crucial, in its shift toward the question of capacitation and decapacitation (Anderson, 2014, 64).

Moreover, as Ami Harbin (2012) explains, disorientation affects the normal functioning of self-concept, in that these affections result from novelties, conflicting needs and requests, new challenges, new environments, or particular

14 Arar is a Canadian citizen, who was abducted in September 2002 at the New York airport (Arar 2006). After roughly two weeks of detention in the US he was transferred to Syria for interrogation- torture (Arar 2006). His wife back in Canada lobbied the Canadian government to get her husband back and succeeded in October 2005 (CCR 2010). Despite the Canadian government’s recognition of Arar’s innocence, the US has yet to recognise his ordeal (CCR 2010).

209 constraints. The incapacity to move, feelings of discomfort, and uncertainties about one’s potential of actions and achievable goals disrupts habits (Harbin 2012). Such disruptions require renewed and increased attention to one’s perceptions of the surroundings. It is in this manner that such disruptions increase the susceptibility to interrogation-torture techniques. Inducing decreasing affections imply decreasing both bodily and mental capacities, as elaborated in Chapter 3 (Deleuze

1978b; Sharp 2011; Spinoza 1994). Diverse de-territorialisations disrupt habits and divert some of the variable power of action in an attempt to ‘resolve’ the decomposing affections (Deleuze 1978a). These techniques reduce the power of action of both body and mind in parallel. I argue thus, that prisoners become less certain and less resistant to interrogation-torture. The more decreasing affections are experienced, the less power is left to resist interrogation-torture.

The banal technique of inducing humiliation provides an exemplary illustration of the parallelism of body and mind. Perpetrators’ techniques exploit the perceived intimacy of bodies in order to decrease prisoners’ mental capacities.

Humiliation works through exploiting cultural and religious beliefs (Anderson,

2014; Physician for Human Rights (PHR) & Human Rights First (HRF), 2007). In the case of the war on terror, Anderson suggests, the prisoner is “racialised and sexualised” (Anderson, 2014, 70) and is based on a standardised and normalised conception of ‘the Muslim’:

This kind of torture directed at the supposed ‘Muslim

Terrorist’ is subject to the normativizing knowledges of

modernity that mark him (or her) both as sexually

210 conservative, modest and fearful of nudity (and it is

interesting how this conceptualization is rendered both

sympathetically and as a problem), as well as queer,

animalistic, barbarian, and unable to control his (or her)

urges (Puar, cited by Anderson, 2014, 70).

It is the inducement of feelings of powerlessness that is crucial to techniques of humiliation (PHR & HRF 2007). Experiences of mental distress such as fear, helplessness, and worry, lead to other decreasing bodily affections, such as fatigue, drops in body temperature, nausea, and blurred vision (PHR & HRF 2007). To recall, as an idea’s strength results from its connections to other ideas, it needs a fertile milieu to thrive (Sharp 2011). It follows that, for instance, ideas of disorientation are accompanied by ideas of anxiety, uneasiness, and distress

(Zembylas, Charalambous, and Charalambous 2012). An example of inducing humiliation is the use of diapers. Their use should not exceed 72 hours, according to Interrogation Guidelines (ECHR 2015b; Iaccino 2014), yet prisoners were made to “wear a soiled diaper for weeks” (Mohamed Farag Bashmilah, cited by

Hutchinson et al. 2013, 378). The extended use of diapers leads to the “loss of skin integrity due to contact with human waste materials” (Hutchinson et al. 2013, 352).

Wearing a diaper is also paralleled by ideas of humiliation of soiling oneself and is doubled by experiences of excessive faecal smell and sensations of ‘wetness’. The implication is that mental distress, in turn, is paralleled by bodily reactions.

Humiliation is paralleled by bodily reactions, such as asthma, ulcers, colitis and hypertension (PHR & HRF 2007).

211 An understanding of the parallelism of mind and body is also fruitful in analysing the technique of isolation, which demonstrates well the parallel deprivation of bodily sensations and prisoners’ mental capacities (see Story 2014).

The American Journal of Psychiatry explains that solitary confinement has bodily repercussions such as “chronic, severe headaches […] inability to control urges, […] primitive drives, and instincts” (cited by Khan 2008, 226). It also has mental effects such as “developmental regression, […] an inability to […] concentrate, to control anger, rage, […] to anticipate the logical consequences of one’s behavior” (cited by

Khan 2008, 226). This, then, “often leads to mental breakdown” (cited by Khan

2008, 226). On this, Hicks vividly describes his decreasing mental capacities:

Everything outside the four walls is quickly forgotten. With

no mental stimulation the mind becomes confused and dull.

[…] Talking becomes difficult, so when conversations do

take place, you cannot form words or think. […] coherent

sentences become elusive and huge mental blanks become

common, as though you are forgetting the very act of

speaking (Hicks, cited by Leopold, 2011, 2).

In Deleuzian-Spinozist terms, losing one’s mind can be re-formulated as a non-adherence to common conceptions of reason, that is, a non-adherence to conventional categories and logic. In Errachidi’s (2013) case, for example, he warned his interrogators that a giant snowball was about to envelope the earth and that they should run to save their families. Importantly, Hicks describes the

212 continuity of affections and thus the constancy of the struggles for sanity: “[o]nly after five and a half years when I had been promised a date of release did the intense battle with insanity subside, [...] It was a constant struggle not to lose my sanity and go mad” (Hicks, cited by Leopold 2011, 2). Errachidi (2013, CD 5, track

9) explains that it is not unusual for Gitmo prisoners to lose their minds, and while

“some regain their mental balance others didn’t”. An important aspect Errachidi hints at is that these mental capacities vary, and consequently can be increased again.

We could say that techniques of manipulation are more banal than they are exceptional, insofar as they constitute a staple of practice, which may not always be considered extreme. Anderson (2014) explains that the techniques used by the

US officials are banal in that they draw on everyday practice. These banal techniques can result in major injuries, as Interviewee F (2016) noticed. She stresses that not just the EITs, but also lesser techniques of abuse and the very detention conditions at Gitmo, led her clients to suffer mental trauma. In her words,

all of these treatments matter. Amar [Al-Baluchi] of course,

was tortured by the CIA according to the techniques that

were approved by the CIA. But even the men I represented

before, who perhaps were not tortured according to these

techniques, but were mistreated by Department of Defense

personnel in Afghanistan or in Guantánamo, they all

213 suffered from varying degrees of trauma, PTSD, and other

issues.

Affections are a question of intensity, not category. The way a technique is performed matters and all affections frame human beings. As Anderson (2014, 62) points out, intensities render seemingly harmless practices as torture. For instance, “[w]hen news of Barney’s participation in torture broke in the British

Guardian and other newspapers, the story was originally greeted with mild amusement and not a little bemusement”. While the distinction between torture and ill-treatment has legal consequences (Parry 2005), it is inadequate to understand the framing of beings by affective means. As Rose (2004) emphasises, some techniques might not in themselves constitute torture, but amount to torture when combined when, to be precise, they reach an intensive threshold.

Consequently, listing the various forms of tortures denigrates the violence of experience (Rose, 2004).

Drawing on non-representational scholars (Kraftl and Adey 2008; Massumi

2005; Thrift 2004), I would stress that prisoners’ affections depend upon the beings’ particular body-mind dispositions. For instance, Anderson (2014) points out that DDD takes different forms within different prisoners. That is, the affections through DDD techniques are not identical to all beings (Anderson,

2014). And actors are different because their dispositions are the results of accumulated previous affections (Anderson, 2014; Sharp, 2011). It follows that one and the same manipulation technique induces multiple and potentially conflicting affections across different individuals as well as within a particular individual. To

214 recall, the prolongation of Zubaydah’s sitting led to the excruciating pain he experienced. Similarly, FBI interrogator Ali Soufan15 (2011, 464) explains that each interrogation is particular, because every prisoner is different and “knows different things, and has different triggers that will get him to cooperate” and thus each prisoner requires different interrogation tactics. Soufan (2011) therefore affirms that the two ‘architects’ of the EITs, Dr Bruce Jessen and Dr James Mitchell, fail to consider the particular individual’s dispositions with their created list of techniques.

An illustrative example for the dependency of affections upon disposition and intensity, rather than category, is the abuse by means of music. Anderson

(2014) shows how one and the same song transforms through intensity and milieu:

[t]he favourite song of the popular children’s TV character

Barney was also one of the US military’s favourite songs to

play at loud volumes to detainees in Iraqi. Over the course

of days of captivity, the song would be played thousands of

times at ear splitting volumes to detainees otherwise

forcibly deprived of sensory stimulation. […] For parents,

the Barney song was a mildly irritating yet harmless

accompaniment to everyday parenting. In Iraq the Barney

song was used along with other music as one sonic element

15 Soufan (2011) interrogated Zubaydah, the first prisoner of extraordinary rendition, through rapport-building techniques in contrast to the enhanced interrogation techniques.

215 within an environment designed to ‘break’ interrogation

subjects […] The specific purpose of its repetition was to

induce ‘disorientation’ in detainees. Barney’s sugar-coated

song of love and friendship was weaponised (Anderson,

2014, 62).

The descriptions of the two prisoners Binyam Mohamed 16 and Slahi also demonstrate how differently prisoners respond to the ‘same’ technique. Mohamed describes how the music traumatised him: “[t]here was loud music, Slim Shady and

Dr. Dre for 20 days. I heard this non-stop over and over, […] then they changed the sounds to horrible ghost laughter and Halloween sounds. It got really spooky in this black hole” (Mohamed, cited by Siems 2011, 134). In contrast, Slahi used music to increase his capacities: he ‘enjoyed’ the music assault in that he used it to learn English (Slahi 2015). He writes, “I didn’t really mind the music because it made me forget my pain. Actually, the music was a blessing in disguise’ I was trying to make sense of the words” (Slahi 2015, 244).

By highlighting the importance of the individual prisoners’ particular dispositions, I aim to underscore the dangers of manipulation techniques. The issue in ‘breaking’ people is that one never knows one’s capacities; heavily injuring or even killing prisoners may be the result. Rose (2004) affirms that pressure breaks everyone eventually, yet, that the breaking point is always particular.

16 Mohamed is a UK resident captured in 2002 in Pakistan and eventually released in 2009 (Reprieve 2008). He suffered heavy torture at the hands of Moroccans and US officials (Reprieve 2008).

216 Similarly, Slahi (2015, 219) says, “[y]ou’re starting to torture me, but you don’t know how much I can take. You might end up killing me”. On a similar note, Hicks points out that the death of the three detainees was unintentional (Leopold 2011): he affirms that guards “believe that the detainees were ‘accidentally‚’ killed during an interrogation at a secret camp on the island called ‘Camp No‚’ […]. It seems they pushed their dangerous techniques too far” (Hicks, cited by Leopold 2011, 7).

Besides killing the prisoners there is the risk of inducing insanity. It is of little surprise, then, that the major health issue in Gitmo is depression: as of 2004 one- fifth of the prisoners were on Prozac (Rose, 2004), while Khan (2008) reports that some 40-50 people went insane.

Disruptions to the usual habits of mind and body are crucial for affective manipulation, because there is a limit to deprivation and assault. The importance of the practice of disruption was already recognised in 1957 (Anderson, 2014): at that time it was understood that disruptions reminded the prisoner that the perpetrators had the means to better the prisoner’s life (Anderson, 2014). Many techniques developed for interrogation focus on manipulating “the environment in order to keep the prisoner’s hope alive.” This hope is important, because “the prisoner will change his behaviour to avoid or alleviate ‘debility, dependency, dread’. If hope is lost then the prisoner will become uncooperative” (Anderson,

2014, 58). Disruptions, then, raise hope and foster tendencies toward adaptation rather than self-destruction. Anderson (2014, 58) concludes that disruption is crucial to avoid numbness: “‘Debility, dependency, dread’ is not hopelessness. In fact it must not become hopelessness if it is to work.” In the CIA’s (1988) terms, the familiarity of the surroundings and treatment effectively impedes interrogation,

217 because patterned and predictable treatment often results in apathy, which is characterised by withdrawal. The CIA (1988) thus promotes disrupting habits of both the mind and body in order to avoid apathy and to induce psychological regression. With regard to extraordinary rendition, the implication is that perpetrators experience the limits of affective deprivation or assault. For example,

Errachidi (2013) describes that additional punishment in Gitmo is difficult to achieve, as prisoners have little or nothing to lose. The Senate’s Torture Report

(SSCI 2014, 60–61) notes the limits of deprivation as well. It quotes the CIA agents’ assessment that at one of the black sites, “the detention facility’s initial ‘baseline conditions’ involved so much deprivation that any further deprivation would have limited impact on the interrogations.” CIA agents further came to the conclusion in al-Nashiri’s case that the “bottom line is that we think al-Nashiri, is being cooperative, and if subjected to indiscriminate and prolonged enhanced measures, there is a good chance he will […] fold up and cease cooperation” (SSCI 2014, 68).

The following quote further illustrates that a prisoners’ apathy may be an unintentional effect of the affections that practices produce:

[t]he force-feeding was designed to make things as difficult

as possible for the strikers in an effort to induce them to

stop. In the early years, many did. But the prisoners

toughened over the years, and the force-feeding ceased to

be an effective deterrent (Khan 2008, 184).

218 An example for this targeting of hope in extraordinary rendition is given by

Errachidi (2013), who describes perpetrators having devised techniques of pretending to release prisoners: perpetrators give the prisoner new cloths and bring them near the airport, to then re-interrogate the prisoner because of supposedly novel evidence of his lying (Errachidi 2013).

Disruptions in habits affect the intensity of affections. Mohamed gives a very vivid description of how disruptions increase the intensity of affections when discussing a cut that Moroccan interrogators inflicted upon him:

They took the scalpel to my right chest. It was only a small

cut. Maybe an inch. At first I just screamed because the pain

was just…. I was just shocked, I wasn’t expecting…. Then

they cut my left chest. This time I didn’t want to scream

because I knew it was coming. (Mohamed, cited by Stafford

Smith 2007b, 20)

While human beings and their affections are manipulated, their manipulation is never complete nor total. The manner in which prisoners are shaped by the process and procedures of torture exceeds the intentions of perpetrators in three major ways. Firstly, such modulation of affections is more extensive than commonly pictured; human beings are continuously shaped by all the affections they experience and these affections are always particular and situational and, in this sense, prisoners are not merely manipulated, but also unintentionally modifed. One’s power is constantly varying insofar as one is

219 constantly affected (Deleuze 1978b) and this implies that prisoners are constantly affected by their surroundings in multiple and possibly conflicting ways. Secondly, the intensities of affections and their disruption matter. Affections are temporal. In

Deleuzian terms they are the momentaneous expressions of one’s power of action

(Deleuze 1978b; Sharp 2011). For instance, disorientation is a temporary state oscillating between degrees of disorientation and re-orientation (Morris 2006); it is not a fixed mind or body state, but a dynamic variation of degrees of affections

(Harbin 2012; Morris 2006). As a result of the multiplicity of affections, disorientation is a fragile state that must be re-performed and reiterated (Harbin

2012; Morris 2006) and such re-performance exceeds intentional and purposeful actions. Thirdly, affections depend upon prisoners’ dispositions. Although feelings of disorientation or humiliation can be induced and channelled through affective deprivation and assault, there is no guarantee of the effects this will have on any individual.

5.1.2 Prisoners’ Responses

The effects of abuses on prisoners and the responses they generate take on multiple forms, depending upon the prisoners’ dispositions and the milieu; that is, they are always situational. Just as the methods of manipulations are multiple, so are their effects. The implication is that prisoners’ selves are not pre-given nor manipulable without ‘resistance’. Prisoners’ responses depend upon their individual disposition and the milieu. They are forms of re-territorialisation through their affections, which if recognised are labelled as resistance or compliance. The prisoners’ re-territorialisation in terms of their selves are

220 continuous, conscious as well as unconscious and unpredictable. Moreover, responses cannot simply be categorised as either bodily or mental; they are simultaneously both. Prisoners’ responses to affections are always site-specific. In many senses, the actors that become ‘prisoners’ are nothing more than bundles of potentiality (Spinoza 1994) and, as such, represent the potential for novel forms of responses, which would defy the efforts at cataloguing action upon which current efforts to evaluate the practices of extraordinary rendition rely. An advantage of my approach, then, is to analyse practices before their categorisation as either normal behaviour or forms of resistance. Prisoners’ responses are intensive. This recalls Errachidi’s (2013) claim that every action could be deemed subversive.

There were no clear rules and even without intent he would end up being labelled noncompliant.

I suggest re-formulating the prisoners’ resistance in terms of conscious and unconscious responses that aim to increase their capacities. As discussed in the last subsection, what matters is not so much what is done, but how it is done, as well as how it is experienced. One and the same behaviour bears potential to constitute compliant as well as resistant behaviour. The questions of ‘how do prisoners resist?’ or ‘what behaviour is subversive rather than normal?’ (see Yeung and Somashekhar 2016) are inadequate questions, because they are too restrictive and miss the richness and potential of human affections. Starting from given categories (compliance versus resistance), such recognition-based forms of evaluation cover over the multiplicity of affections and their effects on both prisoners and perpetrators. Potentialising human affections and how these

221 constitute the actors’ capacities allows conceptualising the creation of ‘novel’ forms of ‘resistance’.

Affections are not only crucial in processes of de-territorialisation, but also in processes of re-territorialisation. Sensation simultaneously re-territorialises and de-territorialises. For instance, Yeung and Somashekhar (2016) assert that sensation is increased (sharpened), or decreased by the prisoners’ milieu. They deplore the paucity of research on the use of the five senses to control prisoners and on prisoners’ use of their senses to subvert rules intentionally. It is the use of the senses of sight, touch, hearing, tasting and smelling that constitute, in Yeung and Somashekhar’s analysis, the milieu as a shaping force. Expanding upon this notion, I have suggested that minute and seemingly ordinary affections, which are irreducible to sense percepetion as that figures in the common sense conceputalisation, can become crucial for prisoners’ re-territorialisations. I have also demonstrated that human beings are not simply disempowered by affective manipulations. To recall, Pain (2009, 467) argues that fear is not simply passively absorbed by individuals, but embedded in wider geopolitics and is “felt, patterned and practised in everyday life”. It is this more inchoate, microperceptual sense that

I mean to evoke when I speak of ‘prisoners’ responses.’

Prisoners’ responses extend beyond conscious and intentional resistance.

Intensive transformation in affections imply a change in the prisoners’ responses to these affections. For instance, Slahi (2015, 246) describes that “the hardest step is the first step; the hardest days were the first days, and with every day going by I grew stronger”. Rose (2004, 105) recalls a prisoner’s saying “‘[i]n the beginning I was scared in the interrogations, but towards the end they just seemed stupid’”.

222 Similarly, Errachidi (2013) explains that new interrogators would ask the same questions over and over again, which annoyed prisoners and eventually brought many of the prisoners to stop answering the questions (Errachidi 2013). Slahi

(2015) further describes how angry questioning can turn into a praise: he describes how fear disappears after hearing again and again the same phrases and the surprising effects these phrases can induce. He asserts that at “some point it will have no effect at all. It may even sound like a daily compliment” (Slahi 2015,

311). While I do describe a few forms of resistance subsequently, there is no attempt to produce a comprehensive list. Rather, the examples below aim to show the richness of life and that there are always ‘unexpected’ means for prisoners to re-territorialise themselves in space and time, as well as in terms of their selves.

Prisoners use different forms of re-positioning themselves with regard to the territory they are detained in, by whom they are detained, and what rights they have. On one hand, there are obvious forms of re-territorialisation, such as texts written on walls in order to communicate with other prisoners or to re-locate themselves, as well as other strategies of communication and information exchange (El-Masri 2006; Errachidi 2013). Prisoners find surprising means to communicate, such as exchanging information while they are forced to empty the toilet buckets of the different detention cells in Afghanistan, or using the Gitmo strategy of regularly moving noncompliant prisoners from cellblock to cellblock to spread information (Errachidi 2013). Communication with others is an important affection increasing prisoners’ capacities. For instance, Errachidi (2013, CD 6, track

14) recalls that the letters he received, in his words, made him feel that he “wasn’t alone” and they “had an amazing effect on my morale”.

223 On the other hand, there are inconspicuous re-territorialisations through affections. For instance, as described in Chapter 1, while El-Masri (2006) was hooded for his exit from the plane in Afghanistan, he was nevertheless able to discern that he was not back in Germany due to the exterior temperature.

Similarly, Hicks (2010) describes feeling the humid and tropical air at Gitmo. Other examples are Mohamed and Arar assessing that they were transferred in a military or private plane, as it was quiet with barely any people on board (Arar 2006;

Stafford Smith 2005b). Moreover, Arar (2006) noticed the peculiarity of an elevator in the Middle Eastern prison, which helped to identify the prison he was detained in. These small and inconspicuous perceptions are extremely relevant to trace the whereabouts of prisoners, which are also important for judicial proceedings, as I show in Chapter 6.

Prisoners actively respond and often do so in ways that provide them with the sense of coherency, which affirms that they ‘remain themselves’. Prisoners explain that resistance is central for them to remain sane and to keep up their conception of their selves (Errachidi, 2013; Rose, 2004; Stafford Smith, 2007a). For

Errachidi (2013) showing resistance was the way to stay alive, remain sane, and not lose hope: he drew power and satisfaction from resisting. Another prisoner likens giving up with becoming a zombie. In the prisoner’s words: “I said no, because if you submit to everything you turn into a zombie” (cited by Rose, 2004,

71).

Some responses aim directly at counteracting de-territorialisation attempts of perpetrators. For example, Hicks (2010) grew his hair to counteract the constant lights in the cell that impeded his sleep. With this in mind, keeping track

224 of time is not only a means to re-territorialise themselves with regard to the place they have been brought to via the duration of transfers, but also constitutes a means to ‘keep their sanity’. For example, Errachidi counted the meals as well as the call to prayers in order to evaluate how much time had passed. He (2013) explains how he occupied himself by counting how many bites he could stretch eating an apple in isolation detention — up to 500 bites. Another example is Slahi

(2015) who recalls counting the roughly 4,100 holes in the mesh-walls in his cell.

In these diverse ways prisoners’ subjectivity in the face of attempts to disrupt it bears potential for active responses, re-territorialisation of the prisoners’ selves and thus resistance from being formed into a responsive subject. The very standardisation of the prisoner’s subjectivity bears the potential for forms of resistance on the side of prisoners. For instance, the conventional conception of

‘the Muslim’ transforms being touched or having one’s possessions touched by foreign hands into an insult (Errachidi 2013). The Torture Report (SSCI 2014) affirms that nudity is a more degrading experience for Muslims than for Christians, because nudity is more taboo in Muslim culture (see also Khan 2008). When the self-concept of prisoners bound to their identity as Muslim men are challenged, such as decency conception about nudity, prisoners experience mental abuse on top of physical abuse. An example for this instrumentalisaiton is the practice of sodomising prisoners, as El-Masri describes in Chapter 1. Khan (2008, 46) cites a prisoner explaining that cavity search “wasn’t for a medical reason or to see whether he was hiding something, […] because they did it at least fifteen or sixteen times, maybe more. ‘There was no purpose for this,’ […] ‘other than to degrade

Muslim men.’” At the same time, however, the presumptions about a prisoner’s

225 subjectivity allow for prisoners’ responses that confuse the perpetrators, their expectations of the terrorist subject. Prisoners play upon categories of recognition, for example, by handing back their shirts and, through the very act of taking off of their shirts, play upon the idea that being partly nude and deprived of clothing is a punishment or humiliation (Errachidi 2013). As Errachidi (2013) points out, the mere fact that it is the prisoners doing it lends such action to the experience of protest. Another example is the desecration of the Koran, for instance by throwing it into the toilet (Goodman and Al-Hajj 2013; Hutchinson et al. 2013; Welch 2009), which led prisoners to hand back the Koran to the library (Errachidi 2013).

Prisoners also find surprising ways to respond through ‘reversing’ punishments. They find ways to increase their capacities by making punishment

‘useful’ to them. Apart from the use of empty toilet buckets for information exchange, we can think of the way that humiliation can contribute to the formation of solidarity amongst prisoners (Errachidi 2013). At times, Errachidi (2013) was not allowed to go to the toilet and soiled himself. He explains, that while this humiliated him it also implied that he was seen by others as a fellow prisoner rather than a US spy or otherwise privileged prisoner.

Among the other unpredictable paths of this micropolitics of affections is

Errachidi’s (2013) vivid description of how he drew satisfaction from finding and hiding a gravel stone from his perpetrators; another is his ‘pet’ ants (Errachidi

2013). Not only did he draw pleasure and satisfaction from observing and studying the ants but he also nourished them with bits of his meal, which he managed to hide from the guard (Errachidi 2013). Errachidi (2013) gained a sense of personal satisfaction, even purpose, from this small act of saving a trapped ant and by

226 saving ants from being killed by soldiers searching his cell. In a very different mode of response, Errachidi (2013) explains that he purposefully used repetitions in order to foster numbness towards forced cell extractions. He (2013) provoked forced cell extractions by refusing to give back his food plate and the spoon. His argument is that the more forced cell extractions were done, the less frightened the prisoners were of them and the greater the risks for the officials engaging in this practice (Errachidi 2013). This response hints back at the importance of disruptions I outlined earlier in this chapter. This last example further indicates that the prisoners’ responses and the perpetrators’ abusive or humane treatment are intertwined, as I will explore further in the following section.

5.2 Prisoners and Perpetrators Affect Each Other

Interactions between prisoners and perpetrators have effects beyond transforming the prisoners into interrogation-torture responsive subjects.

Problematising the prisoners’ responses as either resistant or compliant, as I have done, is important to highlight the effect of responses beyond their categorisation.

In this section, I describe how the interrogations and hunger strikes affect all the actors involved. Affections are created in relations and affect both sides of the relation (Anderson, 2009; Kraftl & Adey, 2008). I argue thus, that affections are double-sided, that is, both the ‘exerting’ and the ‘receiving’ part of the relation are affected.

Interrogation-torture techniques and the prisoners’ responses are intertwined, with the effects of techniques being situational. For instance, getting items, such as a book, might be comforting, but it might be a punishment as well: a

227 response to being given the same book over and over again (intended as punishment), was that some prisoners started to learn Harry Potter by heart

(Khan 2008). Prisoners’ responses are an integral part of the interrogation-torture techniques and can lead to lessened, but also increased, abuse. On one hand, the interrogation-torture or treatment of prisoners and their responses can lead towards lessened abuses. For instance, Slahi (2015) refused cooperation as soon as violence came into play. He (2015, 202) explains that the more his interrogator scared him, the “sharper and less cooperative” he became.

On the other hand, the prisoners’ responses to their treatment can push perpetrators towards increasing abuse. For example, the better treatment of prisoners after intense resistance and bargaining with the Gitmo leadership led to much bad blood with the guards (Errachidi 2013). In turn, the escalating violence of guards lead to renewed and wider opposition of the prisoners (Errachidi 2013).

Verbal resistance is another example of how the prisoners’ responses affect the perpetrators and lead to increased abuse. Errachidi (2013) describes how he tried to get back at his interrogators by highlighting the flaws in the interrogators’ logic and accusations. Similarly, Mohamed recalls one of his answers making his

Moroccan interrogator angry with him:

I smiled, as I know I had got through to him. It was a

mistake. He came and backhanded me across my right

cheek. In a strange way, though, I felt victory over him

again for a moment. I’d got under his skin (Mohamed, cited

by Stafford Smith 2007b).

228

Yet, the continuous co-affections of perpetrators and prisoners go beyond simply increasing or decreasing abuses in that they change both the prisoners’ and the perpetrators’ modes of existence. Forming the interrogation-torture responsive subject also affects the perpetrators. The perpetrators’ capacities to feel, think and act transform alongside that of their prisoner. An example for this re-forming of prisoners and how it affects the perpetrators is how Mohamed’s learned his offence story. The offence narrative turns around planning a dirty bomb attack in the US with José Padilla, another suspected terrorist in detention

(Stafford Smith 2007b). Mohamed explains that the details of the story are “hard to pin down […] because what they wanted changed from Morocco to when I was in the Dark Prison, to Bagram and again in Guantanamo Bay” (cited by Stafford Smith

2005b, 1). He had to guess answers, and if it was not what his interrogators wanted, he was tortured (Kessler 2009; Stafford Smith 2005a, 2007b). As

Mohamed recalls, his interrogators would say: there is a “guy who says you’re the big man in Al Qaida. I’d say it’s a lie. They’d torture me. I’d say, okay it’s true.

They’d say, okay, tell us more. I’d say, I don’t know more. They’d torture me again”

(cited by Stafford Smith 2007b, 18). The next time, he would guess a different answer to that question (Stafford Smith 2007b). Mohamed says: “I would describe the people and what they did. I was just making stuff up, but it make [sic] the interrogator very happy. But then he went off and did his homework. He came back angry” (cited by Stafford Smith 2007b, 27). He explains that he was asked by his interrogators to “[j]ust say what we want. Don’t make things up” (cited by

Stafford Smith 2007b, 27).

229 Interrogation-torture practices have effects exceeding the actors’ intentions, such as their effect on the perpetrators. The abuses perpetrators witness can affect them heavily. The CIA itself recorded the effect of its personnel witnessing the EITs as follows: “[i]t is visually and psychologically very uncomfortable. […] Several on the team profoundly affected... some to the point of tears and choking up” (cited by SSCI 2014, 44–45).

Another example of the interdependent affections of perpetrators and prisoners is the double practice of hunger strike and force-feeding. This double practice also illustrates the wide-ranging effects the prisoners’ hunger strike has.

In response to hunger strikes, the US officials developed infrastructures and implemented policies for force-feeding; it led to the re-structuring of the functionaries’ work. The development of infrastructure to support force-feeding infrastructure and the implemented guidelines in Gitmo led to scandals and international pressure on the US to close the facility (Leonard 2013).

While hunger strikes are a strong, long-standing, and widely used form of resistance, they constitute a major hardship for the prisoners. Prisoners experience hunger and pain associated with their emaciation and they experience pain relating to the force-feeding procedures. The Detainee Treatment report affirms that Al-Hajj was on hunger strike for about 480 days (Hutchinson et al.

2013) and reportedly, one of the prisoners was on hunger strike for nine years

(Democracy Now 2015). Such long-term hunger strikes imply force-feeding, which add further decreasing affections beyond that of the hunger strike itself. For example, Mohamed was painfully aware of how his bones were strapped against the force-feeding chair (Bradley 2014). And El-Masri remembers force-feeding as

230 very painful: he recalls that “[a]fter the force-feeding, I became extremely ill and suffered the worst pain of my life” he recalls (El-Masri, 2005, no pagination). Khan

(2008) reports that prisoners are strapped to a chair and a feeding tube is forcefully inserted through the nose to go down into the stomach, yet, it sometimes goes into the lungs. To check that the tube is in the stomach, perpetrators pour a bit of water and if the prisoner chokes they know that the tube is in the lungs

(Khan 2008). Prisoners are then fed liquid nutrient packs (Khan 2008).

Force-feeding practices can be designed in such a way to intensify the pain.

Al-Hajj’s visceral description points out how the process of force-feeding can be turned into “punitive exercises” (Hutchinson et al. 2013, 228). Firstly, he describes that the perpetrators “use the same pipe (I can see it is the same number) for about two weeks at a time. It makes me nauseous to see the same one going in each time” (cited by Khan 2008, 190). Secondly, some “guards come by and knock the pipe when it is in my nose. It is very painful” (cited by Khan 2008, 190).

Thirdly, he describes the experience of “constipation and diarrhea alternately — for roughly three days each at a time” (cited by Khan 2008, 191). His bodily state is paralleled by mental affections, he says: “I feel dizzy and in danger of collapse when I stand up….” (cited by Khan 2008, 191). Finally, he explains that he is held in that chair for an hour to hinder him from throwing up, yet if he does, which he asserts happens often, he is not given clean clothes and he cannot clean himself, because the water tap is turned off. In his words:

[t]hey’re supposed to feed you (with) two cans, small cans

… but they feed us 24 cans and 24 bottle of water,

231 continuous. And we (were) throwing up, it continues and

we (were) throwing up and it continues. This is one

feeding; [it] would take 8 hours like that, you are in chair.

Until your cell become full of [vomit]. (Al-Hajj, cited by

Hutchinson et al. 2013, 228).

The Torture Report found that “at one point, Al-Nashiri launched a short lived hunger strike that resulted in the CIA force feeding him rectally” (SSCI 2014, 73).

Another example is that “Majid Khan’s ‘lunch tray’, consisting of hummus, pasta with sauce, nuts, and raisins was ‘pureed’ and rectally infused’” (SSCI 2014, 100).

The report further cites a medical officer describing how Khalid Sheikh

Mohammed’s (KSM) rectal rehydration was done: “[…] you get a tube up as far as you can, then open the IV wide. No need to squeeze the bag — let gravity do the work […]” (SSCI 2014, 100).

Affections are not organised in an all or nothing manner; it is not a question of being affected or not, but of a range of degrees. The description of the double practice of hunger strike force-feeding documents the way in which so-called medical attention can amount to abuse and points out that the medical staff are not a neutral and independent third party. As Hickman (2015, 197) points out

“[h]unger strikes made everyone’s job more difficult and put all of us in a toxic mood.” On a similar note, Al-Hajj explains that the intensity of the “pain of putting the tube up my nose depends on the shift. […] Some days they put the tube in okay, so it does not hurt too much. But some days I suffer until the tears stream down

232 my cheeks” (cited by Khan 2008, 189–90). And Rose (2004, 63–64) points out the effects on a doctor: the hunger striking prisoner

‘[…] refused to eat a hundred and forty-eight consecutive

meals’, Dr Louk said with clinical precision. Then came a

flash of anger. ‘In my opinion, he’s a spoilt brat, like a small

child who stomps his feet when he doesn’t get his way.’

These transformations at the level of feelings, thoughts and actions are not necessarily conscious. Daniel Lakemacher (2010a, no pagination), a former

Hospital Corpsman at Gitmo, points out that “even before it became something conscious, I had started acting in a different way, almost in a sense trying to redeem myself […], not in any specific action, but in my mindset”.

5.3 Perpetrators’ Affections and their Capacity for Responsibility

it just seemed...it seemed like such a mixed message

between, you know, the unspoken hate these guys, hate

these guys, hate these guys, and then we are providing the

highest level of medical care and mental health care, and

everything else. And it’s like, this doesn’t add up. And like

internally that just caused so much frustration and anger

for me. And it was a lot easier to...to focus that on them,

than it was to focus it on something that I was actually a

part of (Lakemacher, 2010b, no pagination).

233

The involved actors experience simultaneously pressure pushing them toward and against abusing their prisoners. Lakemacher’s quote above indicates the effects these ‘mixed message’ had on him. Perpetrators are embedded in a material and immaterial milieu that modulates them. Most importantly, the milieu includes non-intentional and non-human forces (Anderson & Wylie, 2009;

Anderson, 2009): for instance, an earthquake stopped perpetrators from beating up Errachidi in Afghanistan (Errachidi 2013).

A multiplicity of forces push for brutality, while others push for humane treatment. My analysis highlights that perpetrators experience multiple affections, which opens up spaces for thinking and evaluating. I argue that actors involved are at the crossroads of forces without being subdued by them. The first subsection documents various forces facilitating abusive behaviour in everyday dealings with the prisoners and concurrently forces promoting humane treatment. In the second subsection, I describe the perpetrators’ practices of self-framing and point out their relevance in terms of the capacity to evaluate.

Multiple forces push perpetrators towards ethically dubious practices. For instance, the very geographical location isolates perpetrators and shields them from public outcry. Besides the remote location, Gitmo isolates the perpetrators through a bad internet connection, basically no cell phone coverage and only an expensive public phone (Interviewee E, 2015; Mountz & Loyd, 2014; Rose, 2004).

Techniques of dehumanising prisoners increase abusive behaviour (Gill

2009; Khan 2008). Dehumanising practices render prisoners less visible to the perpetrators (Gill 2009). One prisoner explains how he felt stripped of his

234 humanity: “[a] detainee in Guantánamo however, is not even a person anymore. He is stripped of his humanity as each day passes” (Zaeef 2010, 200). In Hicks’ words,

“[t]he guards were desensitized and detainees de-humanized. […] They were told to address us by number only and not by name” (Hicks, cited by Leopold 2011, 3).

The use of numbers instead of names recalls the Nazi tattooing numbers on their prisoners’ arms. Reducing the detention system to mere numbers renders the detention system banal (Gill 2009). This technique is not only in Gitmo, but also in other prisons run by the US and other governments (Errachidi 2013). Khan (2008) explains that numbers instead of names make it easier to mistreat prisoners, as her following quote illustrates well. The prisoners are

nameless, faceless entities, cataloged and referred to by

serial number […] It’s easy to mistreat something called No.

1154. It’s easy to shave its beard, to kick it around like an

object, to spit on it, torture it, or make it cry. […] No. 1009,

No. 1103, No. 902, No. 0002, No. 1021, No. 693, No. 0004,

No. 345, No. 560, No. 928, No. 953, No. 969, No. 713, No.

976, No. 1001, No. 914, No. 801, No. 848, No. 304, No. 1037,

No. 1074, No. 702, No. 892, No. 1453, No. 0003, No. 10006,

No. 1458, No. 0061, No. 753, No. 306, No. 1104, No. 371, No.

1094, No. 0639, No. 657, No. 907, No. 909, No. 849, No.

1101, No. 899, No. 1003, No. 701, No. 0062, No. 1022, No.

694, No. 1095, No. 1459, No. 954, No. 1010, No. 755, No.

235 745, No. 820, No. 10007… It’s easy to skim over numbers

(Khan 2008, 264–65).

The transfers of prisoners also affect the perpetrators by increasing the likelihood of abuse through affecting possibilities of bonding between prisoners and perpetrators (Gill 2009). With regard to asylum seekers, Nicholas Gill (2009,

193) outlines that the lack of bonds increases the likelihood of abuse: “[w]hatever goodwill does exist towards detainees, though, is systematically undermined by the continual mobility of asylum seekers”. He expands that prisoners are lost in the carceral environments, as they are constantly moved; they become a fleeting and ghostly presence (Gill 2009). Bonding or the lack thereof renders the prisoners’ life easier or harder. It affects the functionaries’ likelihood “to support legal appeals, re-open legal cases, […] act as character references, prepare legal arguments, translate legal documents, secure good legal representation, deter poor or unscrupulous legal representation […] and block the transfer of detained asylum seekers” (Gill 2009, 194). Gill (2009, 194) concludes that, “[g]iven the degree of influence wielded by management, the way in which detainees are presented to managers is of critical importance”. On a similar note, Rose (2004) stresses that the guards’ rotations in Gitmo made it more difficult to get to know their prisoners and the guards were explicitly watched and prohibited from bonding with the prisoners. Building a relationship with prisoners is discouraged in that the guards

“assigned to each block were changed every day” (Rose, 2004, 67). And in the instance that “any sign of a guard ‘getting personal’ with a detainee” was detected, the superior would “take immediate action” (Rose, 2004, 67). On the same note,

236 Hicks points out that “[s]oldiers were not allowed to engage us in conversation”

(cited by Leopold 2011, 3). Both the prisoners’ transfers and the rotation of guards affect perpetrators in minute ways and so affect their capacities to decide and act in their functions as guard or interrogator. In addition, the guards’ rotation keeps them alert and insecure (Cucullu 2009). Moreover, these transfers isolate the guards. The former Gitmo guard Hickman (2015) recalls that officials in Gitmo were discouraged from bonding, not only with the prisoners, but also with other

US officials outside their small units. Officials from different units were not supposed to know each other’s names (Hickman 2015).

The material and immaterial structures of the agencies affect their functionaries. US officials are not just trained physically, but also mentally by being brought to ground zero before their deployment to Gitmo (Errachidi 2013; Hicks

2004). Rose (2004) also notes that pictures relating to the September 11 attacks hang in Gitmo’s facilities in order to keep up the US officials’ morale. The officials are infused with fear by warnings that the Gitmo prisoners were ‘the worst-of-the- worst’, which further added hatred towards the prisoners (Errachidi 2013; Hicks

2004). Labelling of the Gitmo prisoners and disseminating false information reinforces negative attitudes towards the prisoners. Another example is that officials are affected by their superiors’ statements. For example, General Richard

Myers repeatedly declared that the prisoners “were so dangerous and bent on destruction that, given half a chance, they ‘would gnaw through hydraulic lines in the back of a C-17 to bring it down’” (Rose, 2004, 2). In addition, perpetrators experience minute nonintentional affections resulting from the attitude of higher- ranking officials. One example is that little responsibility is upheld inside Gitmo:

237 one guard who was reported to mistreat prisoners was promoted shortly afterwards (Hickman 2015). Also, no one was held responsible for the three deaths in Gitmo (Hickman 2015). Errachidi (2013) assesses that soldiers were brainwashed and made to believe that the prisoners could turn anything into weapons: some of his guards trembled with fear. Similarly, Hicks notes that the perpetrators “were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us” (cited by Leopold 2011, 3).

However, multiple forces push against ethically dubious behaviour. NGOs, the public, and the media are major forces that condemn extraordinary rendition.

For example, the International Committee of the Red Cross (ICRC) promotes humane treatment of prisoners. The public is important as well, as former Vice

President Dick Cheney (2011) insists: Cheney and Bush agreed to try to pass a UN resolutions before starting the war on Iraq, because their partner in the war on terror Tony Blair faced internal pressure (Cheney 2011). The media’s first release of images of prisoners arriving at Gitmo led to a huge outcry and were labelled

‘torture’ (Rose, 2004). Interviewee H (2016), a Human Rights investigator, recalls vividly that, when reading in the press about supposed black sites on European soil, “there was a shit storm in Europe. So, the political pressure to close them down was immense.”

Various legal experts were outraged when the Military Commissions’ rules were first published in 2003 (Rose, 2004). On the same note, Khan (2008) draws attention to the great number of legal practitioners that took and are taking actions. She explains that there were more than 500 habeas corpus attorneys from

238 large companies representing Gitmo prisoners: there were 50-60 US federal public defenders, a couple of law professors and a few private practitioners (Khan 2008).

In fear of the influence of the prisoners’ lawyers, the US officials tried to ban them from Gitmo (Khan 2008). Yet, as Khan (2008, 174) puts it, the “habeas counsel were a zealous bunch […] who didn’t get steamrolled easily. They had inexhaustible access to courts and legal resources. Collectively, they were a legal powerhouse and a highly influential force.”

On a similar note, high-ranking US officials countered the memo Rumsfeld had signed in December 2002, which allowed the use of EITs (Hickman 2015). In consequence, Rumsfeld withdrew his authorisation a few weeks later (Hickman

2015). Another example is Cheney (2011) describing how then Secretary of State

Colin Powell disagreed with the policy that he and then President Bush were applying.

A micropolitical approach to the day-to-day operations of extraordinary rendition highlights that low-ranking officials can constitute a counter-force to abusing prisoners. For instance, Soufan (2011) delineates the tensions between agencies as well as within agencies, such as between analysts and field agents.

Similarly, Hickman (2015) describes the conflicts between the Joint Task Froce-

160 running the prison on a day-to-day basis, who aimed to treat prisoners humanely, and Joint Task Froce-170 responsible for intelligence gathering, which used aggressive methods. On the same note, prisoners noted the diversity of attitudes of the US officials. Zaeef (2010) outlines that there were different units of guards, which exhibited different behaviours. And Errachidi (2013) recalls kind acts of some of his guards who gave him extra food. Similarly, Slahi (2015)

239 befriended guards, who told him the time and date, which he was not supposed to know. Jumah Al-Dossary too emphasises that there were good guards: a “soldier brought him cookies and hot chocolate. Another young soldier’s eyes welled with tears after he heard what al-Dossary had endured. ‘There are some soldiers who have humanity, irrespective of their race, gender, or faith,’ al-Dossary wrote”

(Khan 2008, 227). This quote eludes to the emotional impact of the guards their interactions with prisoners. While bonding between prisoners and officials is discouraged, it nonetheless occurs. Sami Al-Hajj17, the Al Jazeera journalist, provides an exemplary description of bonding:

I was always glad to see the familiar faces of our military

escorts, who became like old friends over the months. They

always greeted me with happy smiles or hugs. ‘Long time!’

they’d joke sarcastically. I’d come in expecting the captains

and escorts to be hostile, robotic jerks. […] I grew to

genuinely like many of the military guys. I learned about

their families, their plans to go to college, their

relationships, their divorces, and their affairs. They told me

about the girlfriends and fiancées they missed back home. I

keep in touch with some who have left the military and

17 Al-Hajj is an Al Jazeera journalist, who was arrested in Pakistan in December 2001 while travelling to Afghanistan for work (Goodman and Al-Hajj 2013). He was abused and went on a hunger strike for over a year until he was eventually released in May 2008 (Goodman and Al-Hajj 2013).

240 have invited others to my home in San Diego (Khan 2008,

202).

Perpetrators are put at the crossroads of a multiplicity of forces affecting them in unpredictable and minute ways and pushing them towards and away from engaging in ethically dubious practices. Prisoners also notice their perpetrators’ conflicting affections. For instance, Hicks describes the effect of lies on the perpetrators:

It was always interesting to watch the shock on their faces

when they first entered the camps, […] and the realization

that their government ‘did torture.’ Some of these poor

souls suffered greatly as they experienced the ‘other’

America and struggled to carry out questionable orders. It

is not just the tortured who suffer (Hicks, cited by Leopold

2011, 8).

5.3.1 Self-Framing and the Effort of Evaluating

When I got to know [redacted] more and heard him

speaking I wondered. How could a man as smart as he was

possibly accept such a degrading job, which surely is going

to haunt him the rest of his life? For the sake of fairness and

honesty, I must say that [redacted] spoke convincingly to

241 me, although he had no information and was completely

misled. Maybe he had few choices, because many people in

the Army come from poor families, and that’s why the Army

sometimes gives them the dirtiest job. I mean, theoretically

(redacted) could have refused to commit crimes of war, and

he might even get away with it (Slahi 2015, 234).

Slahi’s quote raises questions about perpetrators’ capacity to evaluate, their agency and thus their responsibility. Following an illegal order does not preclude responsibility nor accountability (Arendt 1964). The Nuremberg principle affirms that officials cannot put forward the defence that they ‘have followed orders’ (Levy and Sznaider 2006); it insists on the responsibility of individuals for evaluating orders before executing them and made aiding and abetting criminal endeavour liable (Akinwumi 2012). A soldier dismissing a superior order can be condemned by a military court; a soldier following the order can be condemned by the civil jurisdiction. Soufan (2011, 467) recalls his superior explaining that “‘[e]ven if I give you an illegal order […] you can’t follow it. You are bound by the Constitution.

Remember that at Nuremberg we prosecuted Nazis who claimed just to be following orders […]’”. Soufan (2011, 467) recalls Mark Fallon18 pointing out that agents will be put “in a bad position. Either they’ll watch the law being broken, or, as sworn law enforcement officers, seeing laws being broken, they may try to arrest the military interrogators. Nothing good can come of this”.

18 Fallon was the Deputy Commander of the Department of Defense Criminal Investigation Task Force (CITF) (Honigsberg, Symons, and Moss 2017).

242 Both Arendt (2003) and Deleuze (1998) deplore the blind adherence and obedience to standardised sets of rules in contrast to reflecting upon one’s feelings, thoughts and actions. According to Arendt’s (2003) thesis on the banality of evil, the most dangerous actors are those not evaluating, the indifferent. The question arising thus is why some actors refuse to evaluate their own and others decisions and actions. For example, a guard claiming to treat prisoners humanly refuses to judge other guards’ inhumane treatment. He says, “‘I’m just doing my job. I don’t think it’s my place to judge them” (cited by Khan 2008, 204). Similarly, Hicks (cited by Leopold 2011, 3) describes, “[u]sually the guards seemed cold and indifferent.

They deployed a ‘just doing my job‚’ attitude”.

I suggest that the banality of evil in extraordinary rendition resides in its day-to-day practices. While, certainly, there are perpetrators enjoying the suffering of the prisoners, evil is not bound to evil character or evil intentions. The habeas lawyer of Gitmo prisoners Tom Wilner explains that “[i]t’s naïve for us to think that evil is committed only by people who appear like monsters or ogres” (cited by

Khan 2008, 38). Khan (2008, 59) expands that she does not “believe that the military arrested and detained innocent men maliciously.” She (2008, 59) asserts that in trying to protect the US, the “government abandoned the most fundamental legal principles and failed to conduct the most basic inquiries.” Khan (2008, 59) points out the threat this constitutes, explaining that the “Supreme Court Justice

Louis Brandeis once said that the most insidious threats to liberty come from well- meaning people of zeal who act without understanding.” Then she adds: “[t]here was a lot of zeal after September 11.” Khan’s (2008, 263) description of her first visit in Gitmo provides an exemplary illustration of the banality of evil:

243

I have been to the prison camp more than three dozen

times, and each time, I have been struck by the ordinariness

of it all, as well as by the radical disconnect between the

beauty of the surroundings and the grim reality they mask.

I still remember my feelings of anxiety before the first trip

and the stern, forbidding place I expected to find. Instead, I

found sunshine and smiling young soldiers, boozy

nighttime barbecues, and beaches that called to you for a

late-night swim. I also found loss and tears (Khan 2008,

263).

Arendt’s thesis on the banality of evil and her description of self-framing enable us to appreciate the multiplicity and wide-ranging effects of the involved actors’ feelings, thoughts and acts. Arendt (2003) argues that self-deceiving renders it easier to conform to orders; actions affect one’s ideas of the world

(Arendt 2004). “Nazi criminals, not only acted out of self-protection but showed a remarkable tendency to fall in line with whoever happened to constitute their surroundings” (Arendt 2003, 234). She (2003, 265) explains that “lying was what we today would call a cover-up, and it was felt to be necessary to enable the people to return from a monstrous past that had left countless criminals in the country and to recover some kind of normality”. Arendt (2003) concludes that perpetrators’ self-framing helps them sustain the self-concept they established prior to their deeds and so allows them to return seemingly ‘unchanged’ to their

244 lives. I read Arendt’s claims through a non-representational lens, which implies that perpetrators do not only frame themselves consciously but also unconsciously. Perpetrators’ feelings, thoughts, and actions are generated by a multiplicity of minute affections and exceed control. As Sharp (2011) explains, one is never completely determined, nor completely free either (see also Pain 2009).

Perpetrators self-frame in order to ‘survive Gitmo’. Hickman (2015) explains that the less questions he asked, the easier it was to do his job. Similarly,

Rose (2004) quotes a guard saying there is “only one way to do this job. You got to go in there with the idea that they are terrorists, every single day. You have to have that mindset: that they are here for a reason” (guard cited by Rose, 2004, 56). As suggested, I wish to broaden Arendt’s notion of self-framing through a non- representational focus on the unconscious and affective forces, which also contribute to this process. For instance, many interrogators wanted to contribute to the war on terror, which made them want to believe the prisoners were dangerous terrorists (Rose, 2004). Similarly, Hickman (2015) assesses that half of the reporters visiting Gitmo were avid of the doctored story on the prisoners’ death. They wanted to be reassured that Gitmo was morally good and right

(Hickman 2015).

The distinction between intentional and unintentional misinformation is not clear-cut, as the case of Cheney illustrates: he (2011) is convinced that the EITs disclose intelligence that otherwise would not have been gathered or not in a timely matter, despite the Torture Report (SSCI 2014) citing CIA communications disproving this assessment. Furthermore, he still affirms wrongly that Zubaydah is a high-ranking lieutenant of Al-Qaeda (Cheney 2011). And while Zubaydah was a

245 facilitator for Al-Qaeda, he was never part of the group, let alone number three in the hierarchy (SSCI 2014). As Interviewee F (2016) points out, “either they wanted to believe, or they believed the CIA”. A non-representational approach highlights out the inadequacy of separating wilful and unintentional misinformation, as

Slahi’s interrogation in Jordan illustrates:

my original emails were in German, and the Americans

translated them into English and sent them to the

Jordanians, who in their turn translated the English

versions into Arabic. Under these circumstances, the

original text suffered and the space for evil interpretations

widened with every translation. And there was no end to

evil interpretations (2015, 174).

It can weigh on perpetrators heavily to realise that they have been lied to, as Hickman (2015) recalls. In a briefing, his superior Colonel Michael Bumgarner stated that three prisoners committed suicide by stuffing rags into their throat in their cell (Hickman 2015). Yet, Hickman (2015) had been the supervising guard that night and knew that no prisoner had been brought to the hospital from any of the cellblocks, only from a white van. This realisation of being lied to affected him heavily: “I wondered briefly if he had lied like this before. As he passed by, I felt sick with shame. I tried sleeping that morning, but I only tossed and turned”

(Hickman 2015, 97). At the same time, he himself was coerced into lying: after his

246 first forced cell extraction, Hickman (2015) was kept for 11 hours until his superiors were satisfied with his report.

My analysis underscores that the expectations of perpetrators’ different subject statuses affect their very modes of existence. Corsetti (2013b), an interrogator who faced court martial and was cleared of all charges on 1 June 2006 and honourably discharged from the US Army, explains that the expectations upon his role as interrogator in the field were different from those in his home:

I felt really used. I felt like, you know, you bastards made

me go do things that completely violated my conscience

and changed forever who I am as a human being, but I went

along with it. And now that I’m back, you’re going to charge

me for the very same things you gave me awards for. The

very same things they gave me awards for, they charged me

with (Corsetti, 2013b, no pagination).

A micropolitical approach underscores the multiplicity of affections constituting both prisoners’ and perpetrators’ varying capacities to feel, think and act. Capacities are but temporary effects of affections and, as such, in constant variation (Deleuze 1978b; Sharp 2011; Smith 2007). As situational, affections increase or decrease across a being’s life (Anderson, 2014; Deleuze, 1978b; Sharp,

2011). Drawing on a Deleuzian non-representational and micropolitical approach avoids the inadequate image of a coherent and essentially unchanging self

(Deleuze 1978b; Lapworth 2015a; Sharp 2011). There is no self in-itself, rather the

247 self is created and sustained in relations with others (Lapworth 2015a; Roberts

2012; Story 2014). Corsetti’s quote above highlight that perpetrators’ selves change; they are prone to increases and decreases. Underscoring the situationality of capacities sets out the range of agency and thus responsibility of individual perpetrators. The questions then are if and how responsibility is possible in extraordinary rendition.

Thinking, evaluating, agency and responsibility are embedded within an external milieu and the internal disposition of the body and mind. The subject’s capacity to transform constitutes its freedom (Lefebvre, 2013). While the classical conception of human freedom is pulling agency out and above the forces constituting human beings (Hynes 2015), these conceptions are disproved by the effects of solitary confinement (Story 2014). Affections increasing one’s capacities contributed to the agency of those involved (Sharp 2011). It follows that actors and their agency-within-relation are always site-specific and varying.

Although manipulations of prisoners, perpetrators, or society are possible, there is no full control over these manipulations nor are they ever completed. The involved actors’ decisions and actions have effects exceeding their intentions upon the practice and reverberate upon the actors. Extraordinary rendition, then, affects both the prisoners and perpetrators in their subjectivity, bodily and mental capacities. Consequently, I suggest the inadequacy of images of perpetrators as

‘destroying’ prisoners’ selves, because this presupposes a fixed image of who they are. Instead, the multitude of affections and their potential for re-territorialisation beyond their recognition as resistance or compliance has to be taken seriously to draw out the surprising ways in which prisoners’ affections generate responses. I

248 also underscore that perpetrators are never completely pre-determined, so that there is always space for thinking, evaluating, deciding and acting. Perpetrators experience affections pushing them simultaneously towards and away from engaging in ethically dubious practices. Actors are site-specific, that is, their capacities depend upon their dispositions and their milieu. The implication is that their capacity for responsibility varies.

5.4 Habits of Evaluating

Why foster habits of evaluation? Extraordinary rendition produces site- specific actors, who experience affections favouring, and others discouraging, their participation in ethically dubious practices. The affections they experience affect their worldview and possibilities for action, and so fundamentally affect the ways in which they think and act. As quoted in Chapter 1, an interrogator recalls being faced with the decision to allow or prohibit the use of harsher interrogation techniques (Bryson 2011). Her quote illustrates the tensions within herself and with social structures. Most vividly, it shows the uncertainty and effort that evaluating involves. Another example for this agency-in-relations is Hickman’s

(2015) description of one of his forced cell extraction: his forced cell extraction team lead the handcuffed prisoners out of their cell, where other US officials shackled them (Hickman 2015). About one quarter of the roughly 200 officials started kicking at the already subdued prisoners and the overseeing army colonel did not intervene (Hickman 2015). This event describes not just that high-ranking officials sanctioned brutal treatment, but importantly, that guards were not forced to be brutal. ‘Only’ a quarter of the guards engaged in this unnecessary brutal act

249 (Hickman 2015). There has been no punishment for those not engaged to date

(Hickman 2015).

The varying capacities of actors need to be taken seriously in order to avoid what Arendt (1964) terms the banality of evil. I argue that perpetrators can think exactly because they are continuously affected by an external and internal milieu.

The multiplicity of affections experienced open spaces for thinking and thus for ethical evaluation. The question to engage or not in torture involves continuously varying intensities. The ‘choices’ and the evaluating self transform due to minute affections and conflicting affections enable deliberation (Smith 2007). It is only through recognising and transforming the forces that shape us that we can transform ourselves (Sharp 2011). Consequently, it is essential to select and foster affections increasing one’s capacities (Deleuze 1998). What matters, as Anderson

(2014) points out, is to provide optimism, not that things are unchangeably good or bad, but that things transform for the good or bad.

Cultivating a milieu that increases capacities is crucial to constitute perpetrators responsible for their decisions and actions. Highlighting the varying capacities draws out the importance of fostering a fertile milieu that fosters a habit of thinking (Deleuze 1978b; Sharp 2011; Spinoza 1994). This, I argue, creates and cultivates the capacity for responsibility. This has a twofold implication; namely, that perpetrators require a milieu that foster their mental capacities and that they are capable of responsibility. A fertile interior and exterior milieu for responsibility is never achieved once and for all. This chapter draws out the importance of cultivating individual beings’ capacities to think and evaluate, as

Corsetti points out, describing his vulnerability to external as well as internal

250 affections and how his experience at Gitmo changed him, as quoted in Chapter 1.

Fostering mental capacities and a milieu enhancing these capacities is thus important. As Deleuze puts it, beings have the thoughts and experience the feelings they deserve in that they are bound to their mode of existence, “given our way of being or our style of life” (cited by Smith 2007, 67). We have to pay close attention to these alterations of sense-making and visceral susceptibilities, Sharpe et al.

(2014) argue. Otherwise, we remain within the realm of a “rational sovereign will dictating our actions” and thus miss the competing affective forces of desire, that we mistake for our free will (Sharpe, Dewsbury, and Hynes 2014, 121).

Freeing space for thinking and evaluating is important, because it is the lack thereof that leads to the banality of evil. Evaluating one’s and others’ thoughts and acts is a means to unsettle categories, which as Arendt (2003) and Deleuze (Smith

2007) point out, foster tendencies to avoid thinking; standardised codes of expressions shields actors from reality.

Importantly, extraordinary rendition affects many more people than just the prisoners and perpetrators. It affects society in general in that both perpetrators and prisoners eventually re-enter society. US officials are framed and frame themselves and the world. The interrogator Glendale Walls (2015)explains having taken drugs to help him cope at his return. In the quote below, Walls recalls a former perpetrator taking an overdose back in the US after his experience.

[h]e wasn’t an interrogator, he basically did an MP type job

over there […] and then he got home to Las Vegas […] I

think he was there for a couple of weeks before he’d od

251 [over dose] on heroin, all due to the stress of being

overseas for which he never got help for…” (Walls 2015, pt.

01:35-02:06).

Perpetrators’ affections reverberate upon the wider society in that the US officials rotate through Gitmo. Perpetrators’ modulations have lasting effects, even if unnoticed, so that their experiences in Gitmo in turn affect their family and work on the mainland. Soufan (2011) recalls how he was put under pressure from the moment he testified about gathering intelligence from Zubaydah through rapport- building techniques, which are categorised as non-coercive, rather than EITs. He further reported to the 9/11 Commission that the EITs failed to yield new and reliable intelligence. In his words, “it was also clear that some high-level people at the CIA at the time were specifically targeting me […]. Ever since I had been interviewed by the 9/11 Commission, I was a marked man” (Soufan 2011, 516).

Almost all of the more than 700 prisoners at Gitmo have been released

(HRF 2017); and Gitmo is only the most prominent prison. Former prisoners have to find a way to live with their ordeal. The trauma has long lasting effects, as El-

Masri’s case indicated in Chapter 1. Extraordinary rendition’s transfers affect less directly involved actors, such as lawyers, activists and judges as well. Gill (2009) shows that besides being a source of anxiety, confusion, and stress for the prisoners, transfers also affect activists and employees. Intra-detention centre transfers of asylum seekers in the UK breaks the prisoners’ relations to external supporters, such as lawyers (Gill 2009). Or as Interviewee A (2014) points out,

252 extraordinary rendition “does not just happen to them [prisoners], it happens to their families” as well.

Prisoners re-telling their ordeals illustrate the various effects the experiences have on both the prisoner and the listener. Khan (2008, 46) points out, that “I know that many […] are reluctant to give details because it’s uncomfortable to remember being stripped naked, beaten, and tortured. It forces the men to relive the shame and humiliation”. Similarly, Human Rights investigator

Interviewee E (2015) stresses that “[w]atching them going through the pain of having to describe what happened to them. How difficult it is to almost re- experience the humiliation.” And yet, Interviewee E (2015) points out that for some prisoners it is a catharsis to re-tell their ordeal:

Watching them going through the pain of having to

describe to them… How difficult it is to almost re-

experience the humiliation. At the same time there is

something cathartic about them telling me what happened.

It is a way to let another person know that this happened to

them. This is a kind of healing experience to them. Even

though it is difficult (Interviewee E 2015).

This chapter eludes to a major implication of my thesis’ approach, namely the role of indirectly involved actors, such as lawyers, investigators and judges.

The implication is that all actors’ intentional and unintentional decisions and actions affect the perpetrators, their evaluations, decisions, and actions. For

253 instance, the investigator of the Abu Ghraib scandal, Army Major General Antonio

Taguba was appalled by his findings (Khan 2008). He affirms that the Pentagon forced him to retire in January 2007, as a direct consequence of his inquiry (Khan

2008). Similarly, Human Rights lawyer Interviewee B (2014) describes how his life took a drastic turn by taking up a prisoner’s case:

I don’t know, […] my life was going in one direction and

then it took a drastic turn. So, my life is different because of

that. I wouldn’t be here […] to be involved with politics will

directly affect your life […]. I wouldn’t say political pressure,

just pressure from different things, different people. […]

There was pressure; I don’t know how to say that

(Interviewee B 2014).

254 Chapter 6

Institutionalised Procedures Evaluating Extraordinary Rendition

Later in the day, KSM said he wanted to speak. The

comment threw the court into a frenzy: all proceedings are

aired to the public on a 40 second delay, but should he be

allowed to speak? If so, should the court censorship button

be used? Should the courtroom be closed to the media and

public? No one seemed to have a clear answer so a recess

was called. […] here in Guantanamo, with so much focus on

new rules and procedures set up for the commissions and

use of things like a censorship button, actual justice is not

making much progress. This past week was just

preliminary hearings and most involved in the case

acknowledge an actual trial is still years away (Pitter, 2012,

no pagination).

As Pitter’s discussion of the Military Commissions’ above indicates, judicial proceedings depend upon the involved actors’ decisions and actions, while at the same time, the day-to-day operations of judicial proceedings have effects on the actors involved. This chapter demonstrates that judicial proceedings rely on and affect many people and their capacities to feel, think, and act and therefore argues that these affections have to be taken seriously. It highlights that the judicial

255 structures and litigation processes constituting judicial proceedings bear the potential for change.

In Section 6.1, I draw out the difficulties and possibilities extraordinary rendition implies for preparing a judicial case. It points out the diverse forms of labour involved in constituting a judicial case. Section 6.2 describes the lengthy and fragile processes of determining the territory of offence, the responsible subject of perpetrators and the prisoners’ rights or transgressions of legal orders.

While this section emphasises how judicial structures affect litigations, the subsequent Section 6.3 analyses the importance of the litigating actors and their feelings, thoughts, and actions. The concluding Section, 6.4, draws attention to the importance of evaluations within judicial proceedings.

6.1 Difficulties and Potential of Preparing a Judicial Case

There was a bunch of us […] [My work] was part of a legal

accountability initiative where lawyers and organisations

came together and said we want to do something about

this; about the CIA having secret prisons in Europe. […]

This kind of work needs a lot of support. You can’t do this

work without having people collaborating on the different

levels. From the guys I worked with in Lithuania, to the

guys in the European Parliament, to the work that these

guys at The Rendition Project have done […]. It’s been many,

many people over the last six years (Interviewee C 2015).

256

This section argues that building a case is lengthy and strenuous process involving many legal and non-legal actors and their labour, as Human Rights investigator Interviewee C (2015) emphasises in the quote above. The aim is not to sketch a comprehensive list of the types of labour required, but to examine how the specifics of extraordinary rendition increase my interviewees’ labour, and yet, simultaneously open up possibilities for constituting a case. The first subsection describes how the very practice of extraordinary rendition impedes gathering information, and yet concurrently produces novel sources of information.

Furthermore, it points out that the different sources of information are not equally accessible. The implication is that the affiliations of legal professionals and other investigators affect judicial proceedings in that they affect their access to information. The second subsection demonstrates that information has to be transformed into evidence through verification and cross-referencing. It points out the importance of the relations between different forms of information and actors’ affections in discovering relevant information.

6.1.1 Difficulties and Potential of Gathering and Accessing Information

With regard to gathering information, US government’s policies of obstructions are a significant obstacle to justice for extraordinary rendition prisoners (Interights 2011; Interviewee H 2016). Interviewee G (2016), a Human

Rights lawyer, argues that there is a “quite extreme politicisation of justice”, in which “the pressure from the United States” is “a major factor” of obstruction. The obstructions take the forms of the US pressuring “other states not to investigate

257 and prosecute” and of “the complete failure of the United States to cooperate in any of the investigations” (Interviewee G 2016). However, Interviewee G (2016) further points out that the US government’s obstructions policies do not deny the responsibility of the other countries. In her words, this does not “excuse some of the deficiencies in the investigations; I don’t think it precludes the possibility of investigations.”

My interviewees emphasise that secrecy is a most important means of obstruction. The US government “insists on excessive amounts of secrecy”,

Interviewee E (2015) assesses and Interviewee I (2016), a Human Rights lawyer, concurs positing that secrecy is the greatest difficulty for litigating extraordinary rendition cases. A related means of obstruction is the burying of information amongst an overwhelming amount of non-relevant information, as Interviewee H

(2016) points out.

The involvement of foreign countries increases the difficulties in gathering information. The co-dependency of actors within and across countries implies co- responsibility and thus accountability (Interviewee A 2014; Weissman 2010). The involvement of different countries lessens the likelihood that these states will initiate investigations or demand accountability under universal jurisdiction

(Interviewee A 2014). For example, Interviewee A (2014) asserts that in

Australia’s case “there’s a concerted effort not to embarrass the Americans”. She explains that a state has to demand accountability for crimes against humanity, which allow claiming universal jurisdiction: only specific legal subjects can demand litigation. She adds that “[a]ny state can bring charges against the US government. But it’s just a matter of finding someone, who has the courage to go

258 through with it […] it’s very difficult though, politically.” Thus, Interviewee A

(2014) hints at the importance of the actors’ subject status and the complex constitution of authorities.

The very practice of extraordinary rendition opens up possibilities to constitute judicial cases by leaving many traces. For instance, the involvement of foreign governments led to different governmental investigations. Most notable are the Torture Report by the US Senate (SSCI 2014) and Marty’s two reports

(2006, 2007) for the Council of Europe. Governments also inadvertently leave traces in that the bureaucratisation of ‘secret’ practices produces a paper trail. The

Human Rights lawyer Interviewee D (2015) explains that Zubaydah’s interrogation was “meticulously well documented”, because Zubaydah was the first to go through the EITs. Recently, extracts of Zubaydah’s interrogation protocol and documentation of his experiences of the EITs were released to the public

(“Excerpts From Newly Disclosed Documents,” 2016), as I quoted in Chapter 1.

Another example is the traces the Libyan government left behind when it collapsed. HRW chanced upon important documents in

…the abandoned intelligence building in Libya. […] Records

of the offer from the US government named individuals to

be rendered and the costs written in black and white. We

tracked down the individuals mentioned in these

documents, and they led us to other individuals, who were

not necessarily named in these documents, but who also

259 had allegations of being rendered. […] these documents

were really revealing (Interviewee E 2015).

The Freedom of Information Act (FOIA) requests and un-redacting documents leaked or disclosed to the public are important sources of information.

Interviewee E (2015) explains that “the FOIA constitute an important tool to force the government to disclose information”. Most often, NGOs request FOIAs, but individual persons can lodge FOIAs as well. For instance, Interviewee A (2014) explains that she lodged a FOIA request in Australia arguing that the information was of public interest. Connected to requesting the release of documents is the work of un-redacting these and otherwise found documents. Interviewee C (2015) remarks that it is in a group that they “went through the redacted list of the 119 people that was given at the end of the Torture Report and un-redacted it”. This un- redacting unveiled the whereabouts of specific prisoners at given times, the treatment they experienced, and also the names of further prisoners (Interviewee

C 2015; Interviewee H 2016). In Interviewee H’s (2016) words, while “going through it is not easy” the Torture Report has provided a huge amount of details;

“they basically provided way more details than I think that they thought they were providing”. Interviewee H thus indicates that the report is rich and bears more potential to re-territorialise extraordinary rendition ordeals in terms of territory, subject status, and legal order than intended. He points out, however, that the

Torture Report is restricted to the CIA’s programme — that is, to prisoners detained by the CIA — and that thousands of documents were withheld from the

Senate’s scrutiny. The Senate Committee (SSCI 2014, 9) itself points out that

260 despite requesting “access to these documents over several years”, it “did not have access to approximately 9,400 CIA documents related to the CIA’s Detention and

Interrogation Program” and that these documents “were withheld by the White

House.”

A merit of my analysis is to demonstrate that the transfers are worth attention beyond the issue of infringing non-refoulement obligations; that is, beyond being a transfer to a place of torture. Extraordinary renditions’ peculiarity of transfers produces a major source of information. Interviewee C (2015) and

Interviewee H (2016) highlight the logistics of flights and the material infrastructure, which have left many traces (see also Paglen and Thompson 2006).

Interviewee C (2015) explains that “a good way to follow a case was the flight data, to track the flights”, because the prisoners “had quite good knowledge on what day they were taken to the next place”. These flights have left crucial traces for the verification of extraordinary rendition ordeals.

Other judicial proceedings provide another rich source of information.

Within judicial proceedings, information about extraordinary rendition is disclosed to the public. Interviewee E (2015) explains that “as part of the Richmor litigation, the government has to disclose certain information to the other side.”

The Richmor Aviation, Inc. v Sportsflight Air, Inc. litigation provides crucial information, as Interviewee C (2015) explains:

the two CIA sub-contracting companies had a fight about

taxing, about bills. So in the course of the dispute they listed

their costs and so they became public. We studied them and

261 they gave us information about the logistics of the

prisoners’ transfer flights. The name Richmor was already

known, everybody knew that Richmor was involved in

extraordinary rendition for years. What was new, were the

details of how the whole system was arranged. […] when

we discovered the Richmor case that was a real

breakthrough. […] It was obvious when that file arrived

that this was a watershed moment.

Another means of information gathering is the questioning of potential witnesses. People working at airports noticed the special treatment of some planes or the increased use of the air space and people living or working near suspected secret detention sites noticed the material trace that detention sites invariably leave: “movements, buildings, constructions, stuff like that” (Interviewee C 2015).

Interviewee C (2015) describes how he walked about and tried to get in contact with the villagers living near the suspected black site and points out some difficulties:

It was a matter of going there and wandering around. The

site they had chosen in Lithuania was near a small village of

seven or eight hundred people, so everyone had seen or

heard something. When it was reported that there was

supposed to be a secret prison near that village, everyone

was sending media teams there in 2009. So the villagers

262 were kind of familiar with the concept by the time I went

there, in about 2011. There were some of them who were

happy to talk and some were not. They had different

recollections and different perspectives. They would

recommend other people. Some would say yes, some no.

This last means of information gathering that I draw attention to indicates several difficulties involved in gathering and accessing information. Such issues include the fact that not everyone is ready to talk, that some statements are incorrect, complexities related to language, and the fact that it can be difficult to find “people who can do the work for you” (Interviewee C 2015). An issue that should not be underestimated concerns the costs this method implies in terms of actors’ money and time. Interviewee C (2015) points out that “for us here in

London it’s just, like, if I'm going to fly to Poland to do a press conference it’s cheap. If I’d have to fly to Thailand, that would be extremely expensive. Just geographically, this is our backyard; it is easy for us to do stuff there.”

Interviewee C’s (2015) statement relates to Mountz’s and Loyd’s (2014) depictions of the effects of remote locations. In their analysis, they (2014, 389) highlight the “remote geographic locations” of detention sites and the “frequent transfers of detainees […] [which] have proven significant issues of concern for anyone who has tried to track down a loved one”. Analysing immigrant detention,

Mountz et al. (2012, 528) explain that the very “geographic isolation strains or severs migrants’ connections with legal advocates, community support, and family”. My empirical material further highlights that the remoteness of the

263 different places of offences matter. While the classical interpretation of the transfers involved in extraordinary rendition is that they multiply the sites of detention for secrecy reasons, the transfers have the additional effects of increasing the financial and temporal costs of investigating possible sites of detention for judicial proceedings. Most importantly, travelling to faraway places takes a toll on the body and mind of the lawyers, activists, journalists, and various investigators as well. I detail the effects that the remoteness of Gitmo has on the visiting lawyers, activists and journalists in Section 6.3.

A merit of my approach is to draw out the importance of the investigators’ affiliations to access information. For instance, the affiliation of investigators to specific NGOs opens the door to Gitmo. Interviewee E (2015) describes that as an individual without recognised affiliations to specific NGOs or journals you are denied access to Gitmo. She points out that “[i]ndividuals can’t just go to Gitmo.

They have to be affiliated with an organisation or be journalists. […] about 5-10 observers are allowed to go each time.” Even family members of the accused “are only allowed to go via a lottery” (Interviewee E 2015). Getting access to Gitmo, however, does not imply getting access to the prisoners. Interviewee E (2015) deplores this lack of access and highlights the importance of being there and being able to talk to all parties in order to monitor the Military Commissions. Moreover, the affiliation to NGOs is not always sufficient to access information. In the case of the European Organisation for the Safety of Air Navigation, EuroControl,

Interviewee C (2015) describes how he was only able to access the flight data base by becoming affiliated to a governmental organisation:

264 The hardest part, undoubtedly, was getting flight data from

EuroControl. […] they don’t give flight data to individuals or

NGOs. […] unfortunately, they are the essential repertory of

flight data. If you don’t have access to them you would

struggle to do the kind of work we did. In the end, the only

possible way to get access to their data was to form a

working partnership with the European Parliaments LIBE

Committee, that’s the Committee for Liberty, Justice and

Homeland Affairs. Because I formed a working partnership

with that Committee, which at that time was carrying its

own investigation into detention in Europe, I was able to

get them to access EuroControl data. And then I was

enabled to have a privileged glimpse of that data. Which,

would I have been working simply for an NGO or a Human

Rights organisation, I would not have been able to do. So,

that was really crucial. Without that it would not have been

possible to build up the cases in the manner we did.

This quote highlights a point that is crucial to this thesis; namely that actors’ affiliations are not given but performed. This depiction illustrates that the affiliations of the various investigators is not stable but an ongoing process of transformation, which affects the possibilities for constituting judicial cases.

Through working with the LIBE Committee, Interviewee C became affiliated with the government and so was able to access a novel and rich source of information.

265 The right to access certain places and information are bound to the investigators’ affiliations. That is, to recall Mussawir (2010b), rights are bound to the subject status. Or as Hubbard (2013, 225) points out, “[d]espite the ideal of universal rights, in practice the affiliation forged between the individual, the state and the community means that this right cannot be extended to all.”

6.1.2 Transforming Information into Evidence

Information alone does not suffice, but has to be transformed into evidence for judicial proceedings. Interviewee C (2015) worked “to provide verifiable evidence”. He points out the difference between information and evidence, explaining that he did not discover the secret detention sites, but that he was

“trying to build up evidence for a court about the existence of the site, which is a slightly different thing”.

A vast amount of information from various sources is verified and cross- referenced in order to transform information into evidence. While all pieces of information can be valuable, they gain weight through their connections with other pieces of information. In other words, the strength or importance of pieces of information lies in the relations, not inherently the pieces themselves. This aspect relates back to Sharp’s (2007, 2011) explanation that material and immaterial beings’ strength and value reside in their connections. Or as Kraftl and Adey

(2008) point out in their analysis of the airport’s atmosphere and Anderson and

Adey (2011) with regard to emergency simulations, atmospheres and their effect on actors rely on complex assemblages, that is, on relations between multiple entities. An illustrative example of how pieces of information gain strength though

266 being put in relation with others is the flight data. Interviewee C (2015) emphasises that “flight data is only useful if you can combine it with accounts of victims”. He expands “we had to find alternative sources, public sources, where we could assert a probability. That’s where the flight data came in.” Interviewee C

(2015) compellingly describes the step-by-step transformation of information into evidences:

So, basically, if you know the date of a transfer, you can

connect that to a place, two places, three places, the

transfers occurring between them. And you can show that

the plane that did these transfers was subcontracted under

a certain contract number and that this contract number

relates to a contract that was given by a government run

prisoner transfer flight, then, that is quite compelling

evidence.

The implication is that most innocuous pieces of information can build up evidence. As explained in Chapter 5, the richness of affections opens surprising means of re-territorialisation for prisoners, which once accumulated and cross- referenced, allow affirming an ordeal beyond doubt. El-Masri’s litigation before the

ECHR exemplifies the richness of pieces of information used in judicial proceedings (ECHR 2012a, 2012b; Marty 2006). As raised in Chapter 1, El-Masri’s statement was cross-referenced with: the witnesses’ statement of the other bus travellers to Macedonia, who confirmed that El-Masri had to leave the bus at the

267 Macedonian border (Gnjidic 2006); his sketches of Salt Pit, recognised by other prisoners detained there; and the consistency of his described treatment with that of other extraordinary rendition prisoners (Interights 2011). In addition, the language and accent gave indications of who the kidnappers, guards, and interrogators were — in El-Masri’s case English, Arabic, and German (ECHR

2012a) and El-Masri also identified one interrogator at Salt Pit as a German intelligence officer on pictures (ECHR 2012a). El-Masri’s mental and physical health was assessed by experts (ECHR 2012a) and a bio-chemical test of his hair proved to be consistent with his account of his detention in a South Asian region and food deprivation, as he went twice on a hunger strike (ECHR 2012a; Gnjidic

2006). Photographs enabled the identification of the Skopje hotel, a waiter, and the room he was detained in (ECHR 2012a); public flight records and the determination of the plane’s trajectory corroborates his statements; and furthermore the light earthquakes El-Masri sensed in January and February were consistent with the geological records of Kabul’s vicinity (ECHR 2012a).

I am stressing, then, the importance of ordering the gathered information, that is, relating bits of information to each other and the massive effort that this ordering implies. Interviewee C (2015) emphasises that the flight data had first to be organised before the data could be used to corroborate the prisoners’ statements. He explains that he “had to start from scratch” and had to “build a flight data set for Lithuania”, because they had no sets of planes known to have been used for Lithuania before his investigation. The setting up of such a data set is a messy process (Interviewee C 2015; Interviewee H 2016). Interviewee C (2015) indicates the strenuousness and the large amount of labour this was:

268

in terms of how the work was actually done, I guess I could

say that I learned to be pretty much an expert with

Microsoft Excel. We, me and people at Reprieve, did a lot of

collating and annotating documents. Annotating and

tagging documents, making them searchable. It was really

data based, complicated spreadsheets of data. That took

quite a lot of people and quite a lot of time to put together.

What is important here is that uncovering patterns of meaning relies upon experimentation and so goes beyond the actors’ decisions and actions. This ordering labour is essential to make sense of information, and so, to discover patterns. To make information searchable and manageable is all the more important, because of extraordinary rendition’s dynamism. Interviewee H (2016) emphasises that the different black sites operated at different times and “the density, the number of the people held at one time in one place changed over time.

The program wasn’t static.” Interviewee C (2015) affirms that only the human mind can follow the dynamism of extraordinary rendition. He expands by saying that “there is no reliable machine reading software. You can’t do this stuff by optical character recognition or just running it through Adobe Acrobat, scraping it and extracting it. It doesn’t work”. Interviewee C (2015) concludes that “you had to do it by hand. […] we had to basically rely on human, human effort”. Human beings are needed to uncover patterns, because they can “see in the data” (Interviewee C

2015).

269

I knew the date or about the date and I was looking for a

plane but I couldn’t find a plane. And then it just jumped

out at me what was going on. And when I had seen it once, I

could find another two or three occasions. So again, we

would not have been able to construct the case if there

hadn’t been that realisation (Interviewee C 2015).

I wish to stress that the affections of actors in terms of intensities are crucial to uncover suspicious patterns. Interviewee H (2016) explains how suspicion arose when a small Polish airport suddenly had a high rise in planes flying in and out. That is, the plane trackers noticed a change in the intensity of the airport’s use. On top of noticing these changes of intensities, organising labour is required, because not all the suspicious flights were extraordinary rendition flights, as Interviewee H (2016) points out. He explains, “[t]he way it works is that you collect the flight data on these aircrafts, and you pull it all together and then obviously, on that list of suspicious aircrafts there will be false positives.” A similar example is detecting front companies. These companies “don’t have a website, they don’t have staff, they don’t have a telephone number. They just have an address”

(Interviewee H 2016). In other words, these two examples of evaluating the usage of an airport or of front companies as suspicious is a matter of intensities and perceptions prior to their categorisations. The importance of the multiple and minute perceptions lay in their connections (Sharp 2007, 2011). As elaborated in

Chapter 4, perceptions are unconscious evaluations of one’s affections through the

270 interior and exterior milieu (Scott, 2014). Or as Arendt points out, personal judgement is about sense-making (Beiner 1992). Ordering elements of information in relation with others produces the meaning of the elements through their connections.

A peculiarity of extraordinary rendition cases is that there are only few statements of prisoners. Interviewee A (2014) points out that some former prisoners dare not come forward, because they are ashamed. She adds that this reluctance is due to the media and to the fact that the former prisoners experience long-term trauma. In other words, the affections of prisoners matter. One prisoner

“has just been released after 13 years, last week. He is someone who has been through hell” (Interviewee A 2014). After that, prisoners are too traumatised to take judicial action (Interviewee A 2014). Moreover, the distinction of having or not having a prisoner’s statement is not as clear-cut as one could imagine, as some prisoners’ statements cannot be used in courts, due to imposed state secrecy. For instance, while Zubaydah has access to an American lawyer, his lawyer cannot share the information with others, including the ECHR (Interviewee D 2015;

Interviewee G 2016). Interviewee G (2016) explains that this affected the

European litigation and put them in an “anomalous situation”. In her words, “we couldn’t tell the European Court of Human Rights anything about his detention, in

Poland or Lithuania directly”. As Interviewee G (2016) explains, litigating was nonetheless possible, because there “was enough information in the public domain, so that it was not necessary to have Abu Zubaydah’s statement, as the court ruled. Of course it would have been important to hear from Abu Zubaydah himself, but that was precluded”. This peculiarity “necessitates from the courts

271 interesting decisions about how it treats evidences in general”, Interviewee C

(2015) stresses.

In the case of existing and judicially usable statements, the practice of extraordinary rendition increases the labour of verification and cross-referencing information. As I described extensively in Chapter 5, perpetrators aim to de- territorialise their prisoners. The prisoners’ mistreatments matter for judicial proceedings in terms of the verification and credibility of their statements. The verification labour costs time and money and is increased by the various governments’ secrecy strategies. The prisoners’ treatments matter, because

“[e]verything that is derived from coercive interrogation is inadmissible in a trial.

And a lot of what happened to the detainees in custody is an issue for any kind of fair trial. You have to determine if what they said was voluntarily obtained, or by coercion or force. […]. It complicates due process” (Interviewee E 2015).

Interviewee C (2015) indicates that the incompleteness of information requires organising information in order to create sense. He says that “in the rare occasion that you would get a prisoner’s statement. […] Victims could describe the site and their experience, they might have suspicions but they could not conclusively say in what country they were.” Similarly, Interviewee H (2016) emphasises that prisoners “could give detailed descriptions of their surroundings and the nationality of their guards.” In addition, there is the issue of incorrect recollections, which highlight the extreme importance of verifying and corroborating information, again resulting in an increased amount of labour (Interviewee C 2015;

Interviewee F 2016). Interviewee F (2016) explains that Al-Baluchi has given his legal team a lot of information about what happened to him, which combined with

272 the Torture Report and open source material, constitute a good starting point. Yet,

Interviewee F (2016) points out, the difficulty is that while Al-Baluchi’s memories are clear, his legal team has to take into account that he might have false memories:

we have to take into account the fact that, […] the CIA didn’t

know how to interrogate. And they most likely implanted a

bunch of false memories in my client. […] So he is very

smart and lucid when he communicates with us. But, it is

important for us, to chase down the details and perhaps

even find things that he may have forgotten, that he may

have blocked out.

As I have suggested, building evidence requires the decisions and actions of the actors and implies high costs in terms of both money and time. It requires either the financial costs of employing people to travel around the world, to interview potential witnesses or former prisoners and to build judicial cases. Or else it requires the volunteers’ time: Interviewee A (2014) emphasises that, “[i]t takes years to put the case together, if you want to do it properly. It takes a lot of time. It takes a lot of dedication by Human Rights lawyers, who are ready to work for free”. Consequently, NGOs fulfil an important role by employing people, as

Interviewee C (2015) emphasises. In his words, “there are not many organisations that would basically devote two years to build up a case. Starting from the ground

273 up, starting from basically zero evidence, and investing two years; that was quite a major investment on Reprieve’s part.”

Constituting a case requires the effort of de- and re-connecting elements of information. Interviewee H (2016) points out that it is a “global effort to track these aircrafts”. Interviewee D (2015) emphasises that the legal teams researching cases, consolidating cases, and working on drafts co-operate as they face similar challenges. They brainstorm strategies, share research, and pool their expertise to try to benefit all the clients equally (Interviewee D 2015). As suggested, however, non-legal professionals contribute very important labour as well. Interviewee C

(2015) stresses that the work he did relied on collaboration. He explains that what the Rendition Project people “have done is that they have collated into one form all the flight data that I was gathering. All this stuff, it wouldn’t have been possible without these various other parties helping out with this.” It follows that actors’ affections impact on judicial proceedings, as the various investigators and lawyers are important for litigating.

The actors’ feelings prior to their categorisation matter, that is, their intensity matters. Taken seriously, affections of uncertainties, suspicions and experimentative actions open up the potential for thinking, evaluating, and allow to chance upon novel ways of connecting elements of information. Finding sources of information involves going beyond the rational intentions of the investigators.

Interviewee E’s (2015) description of finding important documents in Libya is exemplary. Interviewee C (2015), on the other hand, explicitly mentions chance as a factor. He explains that they “chanced upon data that gave a much broader insight into the globality of the second half of the practice, for 2004-2006. It was a

274 very important find, but it was initially kind of a by-product of the Lithuanian investigation” (Interviewee C 2015, my emphases).

6.2 Lengthy and Fragile Processes of Determining Legal Categories

This section sets out the complex and provisional process of determining the territory of offence, the responsible subject of perpetrators and the prisoners’ rights or the transgressions of legal orders for litigation. Determining legal categories is a creative performance: one cannot simply assume that places, people, and offences are given categories, under which the empirical instances are attached. An adequate analysis has to refuse the givenness and to start before these categories. This section demonstrates that these categories are constituted through various actors’ feelings, thoughts, and actions. For this, I first describe how the temporality of judicial structures affects judicial proceedings. Secondly, I focus on the minute and everyday practices constituting the place of offence as a territory. Thirdly, I examine how the perpetrators’ subject status as responsible subjects and prisoners as right-bearing or right-less subjects are constituted. The final subsection describes the transformation of legal orders and points out that these transformations go beyond intentional manipulation.

6.2.1 The Temporality of Judicial Structures

Judicial structures constitute the ground upon which a judgement is expressed and so constitute judicial proceedings (Mussawir 2010a). Mussawir

(2010a) argues that the authority of a judgement is dependent not only upon the

275 reasons, logics, and outcomes, but also upon the judicial structures. Thus, he promotes analysing how judicial structures affect judicial proceedings. As I show later at the example of Military Commissions, structural questions also constitute possible points for challenging the judicial proceedings themselves.

Judicial proceedings involve different phases and potentially different judicial structures. Determining a case’s parameters is different from country to country, perpetrators to perpetrators, and offence to offence. The different countries of detention and abuse imply different sets of evidence for the different prisoners (Interviewee D 2015). That is, the different circumstances imply different types of labour. The last instance in the US is the Supreme Court, while the ECHR is the last instance one can appeal to in Europe (ECHR 2011b;

Interviewee C 2015). As Interviewee C (2015) explains, “you have to exhaust domestic remedies before you can go to the European Court. That’s the procedure.

[…] you have first to go to domestic court or demonstrate why or how it is impossible to do that.” His quote below on the difference between the cases against Poland and Lithuania exemplifies that while determining jurisdiction is a recurring process, it is never quite the same:

[t]he legal forum was different in every place so it meant

that the work was different in each case. […] In Poland

there was a prosecutorial investigation that was going on

for years on the issue. This prosecutorial investigation

meant that it was possible for someone like Abu Zubaydah

to apply for victim status through a Polish lawyer. Which is

276 what happened, and then the lawyer interacted with the

investigation over quite a long time. And then the lawyer

concluded eventually that the investigation was pointless,

kind of a sham to cover up. So the lawyer sent the case to

the European Court of Human Rights. […] On the other

hand, in Lithuania, there was an investigation, but it was

very short, it was curtailed after a year. So, we didn’t get the

chance to get involved and work with the government in

that sense. We went to the European Court much more

quickly, arguing that there was no investigation ongoing

and the one done was a very short one that didn’t produce

anything. […] The investigations in Poland and Lithuania

are different insofar as that in Poland’s case through the

investigation, there was already an awful lot of documents

that showed flights of prisoners that correlated with what

we believed were prisoners’ flights to Poland. So in a sense,

the data was already there. Whereas in Lithuania there was

no data, we had to build the case basically from the ground

up.

The different phases of judicial proceedings can last years. For instance, the mere preparation of Zubaydah’s case against Lithuania took two to two and a half years, Interviewee C (2015) recalls. And Interviewee D (2015) describes how litigation processes can last for years and are constituted by several steps, at the

277 example of the Rasul v Bush case. The litigation began in January 2002 with writing up the law suit, which was filed in February 2002 (Interviewee D 2015). As the opponents in this case, the government’s first move was to dismiss the case for lack of jurisdiction (Interviewee D 2015). This argument prevailed in the next court, and the case was lost; the courts’ judgement was appealed before the Court of Appeal and lost as well (Interviewee D 2015). The Supreme Court then accepted to review the case around November 2003 (Interviewee D 2015). Eventually, it handed down the decision in June 2004 (Interviewee D 2015). Interviewee D

(2015) points out that waiting is a normal aspect of litigating: there is a lot of waiting, “[i]t doesn’t go forward at an even keel. It goes in fits and starts”

(Interviewee D 2015). With regard to the case of Rasul v Bush, the lengthy proceedings meant that by the time of the judgement in the last instance, the two

British prisoners were already released (Interviewee D 2015). And while the two

Australians were still detained, Hicks had been charged and had a separate lawyer

(Interviewee D 2015). That is, he was no longer really part of the litigation, as the case was claiming the right to challenge the prisoners’ indefinite detention without charge, as Interviewee D (2015) specifies. The only prisoner left was Habib, whose release was eventually secured in January 2005 (Interviewee D 2015).

The point I wish to emphasise here is that the judicial structures affect the actors and eventually judgement in various ways. On one hand, judicial structures affect the US governments’ attempts to try the alleged terrorists. Interviewee E

(2015) emphasises, that protractions can be “a huge problem, because witnesses’ memories fade, evidences get old: time has a very negative impact on a case on both sides, prosecution and defense.” On the other hand, the structures impact on

278 the (former) prisoners’ capacities to litigate, in that they are tired, experience long term trauma, are likely ‘already broken’, and there is also the issue of paying for a long process of litigation (Interviewee A 2014). In Interviewee’s A (2014) words, the prisoners:

want to take action but then they, the government prolongs

the proceedings for so long. […] they get tired. They are

broken already, and […] then it’s money. That’s how they

do it. If they don’t break people when they’re in custody,

they break them on the outside.

6.2.2 Constituting the Territorial Affiliations of Places

This subsection sets out that places have to be turned into territories. The idea of territory plays a crucial role in judicial proceedings in that it allows for territorial jurisdiction and differential laws. For instance, the Military Commissions claim jurisdiction based on the geographical location of Guantánamo Bay

(Interviewee B 2014). Consequently, Guantánamo Bay’s evolving territorial affiliations affects the Military Commissions. As I depicted in Chapter 4, a place’s territorial status is a complex composition constituted through day-to-day practices, which may or may not result in categorical changes. The implication for this thesis is that a place cannot simply be posited as either US territory or not. Its territorial status is only ever temporary and affected by economic, military, legal, developmental, historical, social and cultural forces (Elden 2010a). This re-

279 performance of territory through actors’ feelings, thoughts, and actions is a reason for the possibility of debates about the jurisdiction over a place.

The issue of territory is not confined to Guantánamo Bay, which is a unique but not an exceptional place; while Gitmo is the best-known and most researched detention site of extraordinary rendition, it is not the only one. Issues involved in the constitution of the territorial affiliation of places has been analysed with regard to other places. For instance, James Sidaway (2010) describes the history of the island of Diego Garcia and hints at its similarities to Guantánamo Bay. He

(2010, 667) traces the “trajectory British sovereign territory of Diego Garcia” took and points out that its analysis leads “to wider reflections on contemporary forms of sovereignty.” Similarly, Mountz (2013, 835) affirms that the islands of “Cuba,

Diego Garcia, Puerto Rico, and Guam”, which occupy the public discourse for their ambiguous territorial sovereignty, are marked by a history of “colonization, occupation, liberation, displacement, dispossession, and militarization.” She (2013,

836) argues that the debates in the case of Diego Garcia are due to “the complexity of jurisdiction” and that “these creative sovereign undertakings often meet success for years before they are formally challenged”. Another example is Lindsay

Farmer’s (2013) analysis of the question of sovereignty on ships at sea.

Considering the case of British sailors executed on a Brazilian ship, she writes that

“the identity of victims was insufficient to confer jurisdiction on the English courts”

(Farmer 2013, 226). The circumstance of ownership of the ship plays a role as well: the question in this case was whether the British had rightfully taken the ship, in which case the ship became British territory, or whether it was an illegal seizure of the ship, in which case the pirate crew had a legitimate right to resist. A

280 final example is the military base, which has complex jurisdictional arrangements that lead to unreliable behaviour of nation-states (Mountz 2013). Territories expand, shrink, or disappear, as a prisoner recalls being told by his guard: “[t]his is not your soil. You will obey us” (cited by Khan 2008, 17). The prisoner “had become a stranger in his own land: the soil had changed beneath his feet. Twenty miles from Kabul, he was apparently no longer in Afghanistan” (Khan 2008, 17).

Therefore, I argue that viewing Guantánamo Bay as an exception obscures the fact that all other places equally require the re-performance of their territorial affiliations.

Nevertheless, as Guantánamo Bay is the best known detention site in extraordinary rendition, it constitutes a prime example to draw out the role of actors’ affections in constituting its complex territorial affiliation. Its territorial status was debated in US courts for years. To recall, the Bush administration argued that Guantánamo Bay is outside the US federal courts’ jurisdiction, while most scholars, Human Rights organisations and activists argued that it was under

US jurisdiction. As I have explained earlier, Elden (2010a) points out economic, politic, legal and developmental forces affecting the conception of territory. He

(2010a) also mentions that the social and cultural aspects are important in constituting territories. In tracing the ways in which the actors’ affections, thoughts, and actions constitute Guantánamo Bay as a US territory, one can note the aspects of geographical location, citizenships of its inhabitants, legal orders upheld in the place, as well as the infrastructure and culture of its inhabitants.

Scholars trace Guantánamo Bay’s history and analyse legal orders relating to Guantánamo Bay in order to re-assert its territorial affiliation to the US. They

281 tackle questions of territorial sovereignty and effective control (Gregory 2006;

Johns 2005; Reid-Henry 2007). On one hand, they explain that Guantánamo Bay was first leased to the US in 1903 (Gregory 2006; Johns 2005; Reid-Henry 2007).

In 1962, Castro unilaterally dissolved the lease, thus raising questions about a US occupation of the place (Reid-Henry 2007). The US continued using it as a base and to detain Haitian refugees in 1996 and, since January 2002, to imprison hundreds of people captured in the war on terror (Johns 2005; Reid-Henry 2007). On the other hand, scholars and lawyers chase up treaties and laws relating to

Guantánamo Bay (Interviewee D 2015). For example, Interviewee D (2015) explains that he had to research the “factual nature” of the place and the US control over it. He came to the conclusion that the relationship between the US and the base was sufficient to give the US federal court jurisdiction. Yet, Interviewee D

(2015) points out the complexity of determining Guantánamo Bay’s territorial affiliation and explains that before the Rasul ruling, the “legal question had not been resolved”. The landmark judgement re-affirming that the US federal courts have jurisdiction over Guantánamo Bay is that of Rasul vs. Bush (2004)

(Hutchinson et al. 2013; Khan 2008; Reid-Henry 2007).

I have been also highlighting that the lived experience of a place contributes to constituting its territorial affiliation. For instance, Guantánamo Bay is strongly marked by US culture: the base and prison are run by the US military; there is a

McDonald’s (Hutchinson et al. 2013) as well as “Pizza Hut, Subway and KFC

(franchises)” (Johns 2005, 616). Interviewee F (2016) stresses the sensory aspects of the experience of Guantánamo Bay’s territorial affiliation to the US:

282 when you are at Guantánamo, you know, you are on the US

Naval station. You are subject to US authority clearance, the

star-spangled banner is played outside of the courtroom

every morning at 7:30 AM on a bugle and the flag flies.

If the prisoners’, perpetrators’ and lawyers’ affections are important forces constituting a territory, the prisoners’ re-territorialisations through affections also constitute the territorial affiliation of places. Consequently, the detention milieu and even interrogation-torture techniques used in the detention spaces contribute to the constitution of a place’s territorial affiliation. For example, some prisoners recall one detention facility, where the “toilet facilities were modern” and “were

Western-style and faced in the direction of Mecca” (Amnesty International 2006,

14). Their conclusion was that they “were unlikely to be in a Muslim country”

(Amnesty International 2006, 14). Another example is given by KSM, who explains that, in his words: “I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had an e- mail address ending in ‘.pl’” (ICRC 2007, 35). The US culture transpires not only through the detention conditions but also through the interrogation-torture techniques. For example, as we saw in Chapter 5, the ‘I Love You Song’ of Barney &

Friends, a US children’s television series, was used to bombard prisoners with sound (Anderson, 2014).

283 6.2.3 Constituting the Actors’ Subject Status

Existing analyses understand the transfers involved in extraordinary rendition as multiplying detention sites and perpetrators and thus imply that the involvement and responsibility of a wide range of actors have to be defined for judicial proceedings. In contrast, I will argue in this subsection that it is more than a simple multiplication of perpetrators that is involved here. I point out that the judicial proceedings not only allocate responsibility to perpetrators but also contribute to affiliating human beings with subject statuses and affect their capacities. Judicial proceedings thus concurrently rely on a responsible subject and are a crucial part of creating this responsible subject. Judicial proceedings presuppose a responsible person, not simply a human being (Beiner 1992; Sharp

2011). The subject status is a means to allocate responsibility for an action to a human being (Mussawir 2011). As I described in Chapter 4, rights and duties are not bound to human beings, but to a subject status. Mussawir (2010a, 2011) explains that human beings are made judge-able through being allocated a subject status. Yet, at the same time the law creates this very status (Zevnik 2011).

An important implication is that the perpetrators’ affiliations to authorities are not exclusive. Perpetrators are connected in varying intensities to states and nonstate organisations, within as well as across countries, and to particular persons within and outside the US government. I have suggested that the common interpretation of extraordinary rendition is that involving different actors is a means to obfuscate the US involvements (Paglen and Thompson 2006; Weissman

2010). Thus, the US government tactically uses the different actors’ affiliations to involve others and defer responsibility (Hutchinson et al. 2013). The affiliations to

284 different authorities enable different actions. For instance, using civilian and military aeroplanes allows using different air spaces and airports (Paglen and

Thompson 2006). It further implies that the distinction between state and nonstate actors is ambiguous and inadequate, because perpetrators can be affiliated to different authorities at the same time. This aspect is all the more important, as there is increasing debate about allocating responsibility and accountability to corporations (Barkan 2011). And the involvement of private contractors goes beyond the practice of extraordinary rendition and for example, is also widely used in immigration detention (see Conlon and Hiemstra 2014;

Mitchelson 2014). Moreover, ‘single’ organisations are constituted by different actors (Darian-Smith and Scott 2014). For instance, the CIA is constituted by field agents, analysts, and the headquarters, which are competing (Soufan 2011). This aspect is important for there is not only rivalry between agencies but also within agencies (Hickman 2015; Soufan 2011).

A focus on the transformation of perpetrators’ affiliations provides a means to bypass the common dualism of private versus state. As I argued in Chapter 4, authority is constantly negotiated by actors across the public-private continuum and across regional, state, and international scales (Allen and Cochrane 2010). This raises issues when trying to claim jurisdiction based upon the perpetrators’ affiliations, insofar as the multiplications of actors in effective control fragment and complicate the allocation of responsibility (Weissman 2010). An example raised in Chapter 4 is that the private contractors have links to the State

Department (Interviewee A 2014). Interviewee A (2014) points out that a ‘single’ perpetrator can be affiliated to multiple authorities and explains that “even the

285 Senate Select Committee that’s investigating […] half of them got links to the CIA”.

And she adds critically that “that’s how they negate responsibility.” The example of the contracted psychologist developing, teaching, and applying EITs described in the last chapter illustrates that the distinction of perpetrators being state officials or private contractors is a matter of debate. A judge recently noted with regard to the two psychologists: “I don’t think they were operating as [state] agents” (cited by Anderson, 2017, my emphasis).

Beyond this, the very modes of existence of perpetrators affiliate them to a subject status. Prisoners’ assessments of their captors, guards, and interrogators are crucial sources for the perpetrators’ origins and affiliations. For instance, the prisoners’ assessments of the language and accents contribute to establishing perpetrators’ affiliations. To recall Chapter 1, El-Masri recognised American, Slavic, and German accents (El-Masri 2006). Similarly, Mohamed heard “American- accented English” (Watt et al. 2007, 19). Another interesting example highlights the importance of the social knowledge of both prisoners and perpetrators, which allowed El-Masri to link one of his interrogators, Sam, to Germany. As El-Masri

(2006, 18) explains, Sam’s “wife used a ‘Metro-Card,’ a particular card for the

‘Metro’ supermarket that is generally used only by self-employed people, and it was clear to me from this conversation that he knew Germany intimately.”

Problematising the prisoners’ subject status is important as prisoners do not simply have rights. Traditionally, prisoners are seen as “reduced to bare life” by “visibly” withdrawing “[a]ll legal protections” from them and by reducing them

“to something less than human” (Gregory 2006, 414). The concept of bare life draws attention to the production of a citizen, but pictures bare life as a stripping

286 away of rights. Yet, prisoners are not simply stripped of their rights and subsumed under the subject status of bare life. While I detail the issues with rights in the next subsection, I now draw out how prisoners are constituted into right-less subjects. I point out that the prisoners’ subject status is the result of multiple actors’ decisions and actions and affect judicial proceedings.

What a human being is and what ‘to live’ means cannot be simply fixed in unchanging universal values. As Sharp (2011) points out, the classical interpretation is a representational conception of human beings, their rights and humanity in general. The issue with the concept of bare life is that it implies pre- given values of life and humanity, which translates into given rights. Prisoners thus rely upon their ‘recognition’ as human subjects. This raises questions, such as, is a terrorist a human being? Or, what is the baseline condition required for detaining human beings? And more generally, what makes life liveable? These questions are important in providing humane treatment and to prevent suicides. For instance, the Gitmo prisoner al-Dossary declares that he is deprived of humanity and is suffering too much. In a letter he wrote before attempting suicide he says: “I hope you will always remember that you met and sat with a ‘human being’ called

‘Jumah’ who suffered too much and was abused in his belief, his self, in his dignity and also in his humanity” (cited by Khan 2008, 211). Consequently, the question of what makes life liveable has to be re-formulated in terms of intensities and individual dispositions, rather than categorical delimitations. This question and thus, what features of human beings are to be protected, are not categorical, but intensive. The threshold of worthwhile life is individual, so that, practices to protect and guarantee humane conditions have to be individual as well. For

287 example, for al-Hajj, “[f]ood is not enough for life. If there is no air, could you live on food alone? Freedom is just as important as food or air” (cited by Khan 2008,

189). Expanding who is recognised as a human being and what rights are deemed fundamental will always remain restrictive and exclude some beings and some aspects of life.

I have been re-formulating the rightlessness of prisoners as result of multiple actors’ feelings, thoughts, and actions. Beings cannot be ‘stripped of rights’, because there are no pre-given rights; instead, the rightlessness itself is a performed subject status. My analysis points out that both the prisoners’ modes of existence and their subject status are not stable and given but are constantly modulated. For example, the prisoners’ subject status as enemy combatant is not exclusive and citizenship remains an important affiliation. The detention site at

Gitmo and the Military Commissions are explicitly defined to detain and try non-US citizens (Stafford Smith 2007a). Prisoners affiliated with the Taliban or al-Qaeda automatically become ‘enemy combatants’ without rights, rather than ‘prisoners of war’ (Bush and The White House 2001). This creation of a novel legal subject attempts to exclude the prisoners from the protection of the Geneva Convention.

The enemy combatant status aims to constitute a subject status without any other affiliation. Yet, despite the US government claiming that Gitmo prisoners are enemy combatants, their subject status as citizens of other countries affects litigation processes.

The prisoner’s other affiliations are relevant, because their subject statuses constitute leverage points. For instance, the country of citizenship of prisoners may or may not put pressure on the US. Interviewee D (2015) recalls that it was

288 easier to get the two UK citizens (Rasul and Iqbal) released, compared to the two

Australians (Hicks and Habib), because the UK took a great deal of interest in its citizens. Interviewee D (2015) further points out that in Zubaydah’s case, there is no diplomatic entity pressuring the US politically, because Zubaydah is in effect stateless: he was born in Saudi Arabia as a stateless Palestinian (Interviewee D

2015). Yet, the Bush administration’s assertion of detaining high value detainees in

2006, such as Zubaydah, created significant media interest, which put pressure on the US government (Interviewee D 2015), besides the interests of countries, that of the media and NGOs matter as well. Interviewee D (2015) emphasises that a high profile case requires a lot of coordination with other lawyers and with domestic and international organisations. The aim is to coordinate the effort in order to maximise the effects of concern, he explains. This example illustrates how the US government’s decisions and actions have effects beyond their initial intention and can be turned against them.

The point of emphasising that day-to-day decisions and actions affect both the subject status and human beings themselves is to grasp the transitions that occur from one subject category to another. The allocation of a status can change.

The statuses of right-bearing and right-less persons are perpetually affected by encounters between prisoners, perpetrators, and various other actors. An example of changing affiliations is Hicks’ attempts to get British citizenship. Because of the

UK’s investment in having all UK prisoners released, his lawyers attempted to gain

British citizenship for Hicks (Mori 2014). Because Hicks’ mother was born in

Britain he was eligible for citizenship (Hicks 2010; Mori 2014). While he first got the citizenship, it was revoked shortly afterwards and lead to a trail of judicial

289 proceedings on its own (Hicks 2010; Mori 2014). The category of a subject status and its implied rights can change as well. For example, Hicks joined the Laskar-e

Tayyiba (LET) organisation in 2000. While this was of little consequence then, this changed on 26 December 2001, when the organisation was declared to be a foreign terrorist organisation (Crawford 2007). At this point, Hicks became affiliated to a terrorist organisation. While recognised judicial systems prohibit charging someone for actions that have become illegal after their occurrence, Hicks’ affiliation to the organisation was nonetheless held against him and fostered his subject status as suspected terrorist (Hicks 2010).

The crucial implication of the micropolitical approach I have been taking is that the modulation of subject statuses and their implied rights implies the potential for novelty. As the modes of existence of prisoners and the subject status are transformed, lawyers are able to argue for novel types of subject statuses and rights. For instance, lawyers attempted to provide the legally unrecognised prisoners with dog rights (Zevnik 2011), since the prisoners were treated as dogs.

Mohammed Al Qahtani was “led around on a leash; made to bark like a dog”

(Hutchinson et al. 2013, 381). Another example is that lawyers tried to achieve iguana-rights for the prisoners, because the iguanas have more legal protection.

Khan (2008, 40) explains that

the lawyers quickly discovered that even the iguanas in

Guantánamo were protected by a U.S. law, the Endangered

Species Act. […] Anyone, including any federal official, who

hurts an iguana can be prosecuted. The prisoners at

290 Guantánamo are entitled to fewer protections than an

iguana.

6.2.4 Constituting Acts as Transgressions of Legal Orders

This third subsection shows that legal orders are complex and situational.

Legal orders are grounded in contemporary images of humanity and the values of life, as argued above. That is, there is no such a thing as fundamental rights given to all human beings. There is no identity of existing as a human being and the status as a human subject, such as personhood or citizenship. This is relevant insofar as human beings can only be judged in relation to a charge (Mussawir

2010a).

While the co-existence of different legal orders complicates judicial proceedings, they open up possibilities at the same time. The different legal orders imply different possibilities to litigate and different ways of constituting the case.

As explained in Chapter 4, the very determination of the offence prioritises the application of one legal order over another. Interviewee A (2014) emphasises that

“[i]t depends on what, on who you want to hold to account. […] there are so many different avenues.” Consequently, charging a prisoner simultaneously opens up debates on how his/her action constitutes an offence. The US government have developed a strategy of not charging individuals in their custody or have changed the charges and their categorisation for a ‘better fit’ (Errachidi 2013). Without charges, the prisoners and their lawyers are unable to disprove the not yet alleged transgressions (Interviewee B 2014). This waiting led lawyers to try other strategies: for instance, challenging the very system of the Military Commissions,

291 rather than the content of the charges (Interviewee B 2014). Interviewee B (2014) points out that “normally you deal with facts, here you had the huge issue of the structure of the system”. Interviewee F (2016) brings up another instance of a procedural issue that led to a six month suspension of the pre-hearing trial. One of the alleged 9/11 instigators pointed out that one of the interpreters of his defence team had been at a black site. Another example for the requirement of lawyers’ decision and action is the questioning of the jury without criteria under the

Military Commissions 2006 (Interviewee B 2014).

Actors’ decisions and actions enact the law’s applicability, or non- applicability. Legal orders transform and require lawyers’ decisions and actions to constitute and enact legal orders (Martin, Scherr, and City 2010). To argue for a law’s applicability, lawyers trace its historical origin, cite legal experts’ analysis of the specific law, and show previous uses as well as how countries and courts dealt with that specific law (Interviewee B 2014). Interviewee D (2015) explains that an important means to determine the applicability of law is the legal research of prior cases and the US Constitution. To determine the applicability of laws, legal teams investigate the historical sources of rights. For this, lawyers draw on domestic and international legal orders and they look at how other countries have dealt with similar cases. Similarly, Interviewee B (2014) explains that lawyers arguing for the right of self-representation of one of Gitmo’s prisoners investigated where this right came from, and drew on its use in international and domestic law, military court, and international tribunals. Another means is talking to experts in international criminal law and international law (Interviewee B 2014).

292 It is not simply legal orders that undergo changes, but all kinds of regulations, such as moral rules and customs; they are not fixed, but situational.

Despite having been labelled a legal black hole (Steyn 2004), Guantánamo Bay and the practice of extraordinary rendition are highly regulated. Regulations include directives for observing organisations at the Military Commissions (Interviewee E

2015) and regulations concerning visiting lawyers (Interviewee B 2014;

Interviewee D 2015; Interviewee F 2016). There are Standard Operation Programs for chaplains (Yee 2005) and for guards (Hickman 2015). There are also regulations for the treatment of detainees, the investigation of abuses, processing procedures, the use of restraints, prisoners’ transfers, the use of force, the ICRC visits, interrogations, and so on (Cucullu 2009; JTF-GTMO 2003). There are always rules; what is in question is their enforceability and here it is a question of intensities. As Lefebvre (2006) shows, the law’s effects depend upon human beings and the milieu and are neither pre-given nor unchangeable. Gitmo is an illustrative example for changing legal orders and regulations. For example, Interviewee E

(2015) points out the constant changes of regulations in Gitmo:

There are all sorts of restrictions that change. The rules

change constantly about what kind of notebook I can use;

what kind of open or closed toed shoes I can wear; what

can and what can’t be discussed in open court; who I can

talk to, who I can’t talk to. Those rules change all the time.

293 What I wish to stress is that this modulation of legal orders implies their manipulability, yet that manipulation is not simply wilful. I have been suggesting that many ‘misreadings’ are enabled by the judicial proceedings’ reliance on fixed categories deemed to be ‘obvious’ and ‘clear-cut’. Interviewee A (2014) explains that the US interpreted conventions and crafted novel laws in a way that allowed them to do anything they wanted: “[t]he manipulation of the law was central in what they did and are continuing to do to a lesser extent” (Interviewee A 2014).

Yet, as Interviewee A (2014) stresses, “you can’t just say ‘I don’t feel like applying this bit”. Rather, “the interpretation of the Convention Against Torture and other human right provisions is reliant on the intention of the creation of the Act”

(Interviewee A 2014). Conventionally, the determination of applicable legal orders regards the intentional misreading of laws and finding legal loopholes. As

Interviewee G (2016) emphasises, these ‘loopholes’ are not exceptional:

The fact is, of course, that people, bring forward all sorts of

argument what things mean. And some of that is inherent

in law; there is a certain degree of latitude and flexibility

allowing different interpretations of provisions. […]

sometime what you see is a straightforward manipulation

of the law pursuant to policies objectives (Interviewee G

2016).

I do not dispute that there are attempts to manipulate the law. Manipulating the law through misreading and re-interpreting is possible, but cannot be done freely

294 (Interviewee A 2014). On one hand, manipulations are decisions and actions situated within judicial proceedings. On the other, there are not two choices but multiple perceptions informing one’s decisions and actions (Smith 2007). It follows that manipulations are the effect of multiple and minute perceptions. It is because laws and legal categories are situational that debates about their ‘correct’ interpretation in each situation they are invoked will occur (Interviewee G 2016).

The implication is that legal orders have different intensities. In contrast to

Agamben’s concept of camp, my point here is that laws are not suspended but rather the very applicability of laws has to be re-asserted. Legal and moral standards depend upon their milieu and actors’ decisions and actions, by virtue of the fact that they are constantly modulated. And, as was suggested via Torin

Nelson (2014) in the last chapter, the very atmosphere of a place affects the perpetrators’ decisions and actions.

Most importantly, then, the potential for conflict between different regulations, such as moral rules, customs, legal orders, and standard procedure regulations, opens up the space for thinking and evaluating. In sum, forces other than the intentional manipulation of the law affect judicial proceedings. For example, other litigation procedures and different courts and cases affect each other; as Interviewee B (2014) puts it, his case in the Military Commissions got

‘stuck’ behind the Hamdi case in federal court. Another most illustrative example for how structures affect litigations is the lengthy debate about severing one accused 9/11 instigator’s case from the other four to which the quote of

Interviewee E (2015) in Chapter 1 refers.

295 6.3 Lawyers’ and Activists’ Affections in Litigations in and About Gitmo

As the last subsection demonstrates, judicial structures are not given but require re-enactment through the actors’ decisions and actions. As mentioned earlier in this chapter, the factual information about extraordinary rendition in and of itself does not suffice to litigate. As Interviewee C (2015) points out

If there is a failure in Europe or other places in the world to

get accountability for what went on, that failure would not

be due to absence of evidence. That said, it would be due to

some other political factor […]. So you know, frankly, the

evidence is totally clear. […] There is no necessity to gather

more evidence. The evidence is all out there, it’s all

published.

I have been suggesting that the interactions between different actors affect judicial structures and so in turn affect judicial proceedings. Investigators, activists and lawyers and judges affect each other as well: they can support each other and collaborate, but they can also disagree. For example, Interviewee F (2016) points out that infringement of laws in monitoring the attorney-client discussion require the lawyers to file a motion. However, filing motions have the potential to delay the main case: “[t]he reason why it takes so long is that every time such things happen, as defense attorney you have to file a motion. That’s our job” (Interviewee F 2016).

Interviewee F (2016) affirms that the primary reason for the lengthy processes of

Military Commissions is that the US governments interfere in the client–attorney

296 confidentiality. A final example is the trial against Al-Baluchi: it is in its second iteration and has been going on for four years now (Interviewee F 2016).

Interviewee F (2016) explains that it began in 2008, but was suspended, when

Obama said he didn’t want to use Military Commissions, but rather go to federal court. This attempt fell through, however, and the Military Commissions proceedings re-started in 2012.

Military Commissions are an extreme example of judicial proceedings and so highlight the fragility of judicial structures and the importance of the actors’ decisions and actions within judicial proceedings. At the present, under the

Military Commissions 2009 many structural issues remain. There are rules applying to the Military Commissions or, more precisely, there are rules used in

Military Commissions. The legal order transforms with each new decision and action, yet, there is no decision of which rules apply in Military Commissions.

Interviewee E (2015) emphasises that “[t]he trial is barred down in procedural difficulties, because there are no clear rules about which rules should apply.” For example, a question of notable contemporary relevance concerns how the classified information that the prosecutors have is to be disclosed to the defendants, if it is at all. Interviewee E (2015) explains that “what happens in the discovery phase of the trial” is uncertain. These uncertainties lead to complications in “an unbelievably high degree”, which in a regular court “would not be as problematic” (Interviewee E 2015, my emphasis).

Consequently, as Interviewee E (2015) points out, it has to be “litigated what rules apply: ‘do we apply military rules? Do we apply federal rules do we apply other rules that exists in tribunals?’” (Interviewee E 2015). She explains that

297 the judicial structures at Gitmo constitute a “hybrid court that supposedly blends military justice rules with federal court rules and also creates its own rules.” On a similar note, Interviewee F (2016) explains that in their motion, they “keep asserting” that the constitution applies and they “hope that someday the judge decides to rule on it. Honestly, that’s what we do, in 400 and some now. In pretty much every motion we go through everything that could apply.” In Interviewee F’s

(2016) words

There are procedures to follow. The problem is that the

procedure comes by and large from the Military

Commissions Act, which is not the tremendously long

statue. […] So, our understanding is that it is meant to be

fleshed out by the Constitution. […] But because it is the

first time, every small issue takes so long to resolve,

because it’s not straightforward. […] We have to handle it

completely from scratch and the judge has at least to try to

assess it.

The Military Commissions also exemplify how non-legal forces, such as public and political pressures, affect judicial structures and the actors’ labour. The domestic and public condemnations of Gitmo’s ‘trials’ have led to several changes of structures and so created additional labour for litigating actors (Interviewee B

2014; Interviewee F 2016). Interviewee B (2014) explains that the Military

Commissions were re-created as they went along. He describes that most of his job

298 consisted in investigating the new rules and in re-writing motions, because of the structural changes in 2005 and again in 2006. While there were multiple adaptations along the way, these eventually coagulated in substantial changes and a re-naming, when the Supreme Court assessed that the Military Commissions were illegal (HRW 2006; Interviewee B 2014; The Justice Campaign 2014a). The implemented Military Commissions Act of 2006, however, is almost identical to the previous Military Commissions with the addition of being approved by the

Congress, as Interviewee B (2014) and Interviewee E (2015) critically suggest. And the Military Commissions Act of 2009 are still full of flaws precluding their recognition as legitimate(Interviewee F 2016; Interviewee K 2016)

The geography of Guantánamo Bay implies an immense investment in personal and labour time on the side of visiting journalists, activist, lawyers and judges. Getting to Gitmo is both physically and mentally arduous. Interviewee K

(2016) points out that “Guantánamo is a very strange place”, while Interviewee D

(2015) points out that “the problem is not communicating with him [client] once you’re there, the problem is getting there, because you have to go down to

Guantánamo.” He goes on to explain that there are now various ways to get to

Gitmo: there are commercial flights or you can you organise a military flight. Yet,

“you have to go there for a week: you fly down on a Monday and you can’t fly back until Thursday. So it takes a lot of time to visit your client” (Interviewee D 2015).

Similarly, Interviewee F (2016) points out that getting there is cumbersome and that “you have to fly down according to the flight schedule, […] you can’t go down any time you want”. When she goes down, she tends to “go down on Saturday and come back on the next Saturday”. For Interviewee K (2016), too, it takes a week:

299 “for me it is a whole week, because I live at the other end of the country” and she points out that “I’ve been going (to Gitmo) five times a year, for ten years”. In addition, the geography of Guantánamo Bay implies financial and temporal costs of residing there for a couple of days. As Interviewee F (2016) points out, “you have to pay with your own money if you’re not working for the commission. You pay for your stay, though, it’s not tremendously expensive.”

Besides the costs in terms of money, time, and effort to travel to Gitmo, there is for activists and journalists also the effort of applying to get access to

Gitmo: “you have to get approval from the Department beforehand and that’s all the hassle” (Interviewee F 2016). Interviewee E (2015) also points out the tediousness of getting the required approvals. In her words,

I have to submit a lot of paperwork to the Military

Commissions; they have to approve me as an observer.

Human Rights Watch as organisation has to apply to be an

independent observer. The government decides whether or

not Human Rights Watch is eligible to observe these

proceedings.

The lawyers, activists, and journalists are further affected bodily and mentally by their living condition once in Guantánamo Bay. In Interviewee F’s

(2016) words, “frankly you would probably be disappointed if you go to Gitmo. It’s very little actually there; it’s just an ageing base with little resources and a lot of iguanas.” She explains that at first it is exciting to go to Guantánamo Bay, but then

300 it becomes: “oh, I need to go to Gitmo; I’m going to be eating crap food, and it will be 90° [Fahrenheit]” (Interviewee F 2016). Another example is the tediousness of

Guantánamo Bay’s regulations. Interviewee E (2015) describes that visitors are constantly escorted while in Guantánamo Bay: “when you arrive you are assigned a minder, who escorts you wherever you want to go during your time there, including to buy groceries, to get food, to go everywhere. And, you have to travel in groups.” She further describes that “there is no cell phone coverage down there and there is only a landline for internet. They will check your phone or camera if there are any photos they think you cannot have with you. They check that on the island” (Interviewee E 2015). Similarly, Interviewee D (2015) describes the dull repetitiveness of Gitmo’s day-to-day life:

you stay on one side of the island; take a ferry to the other

side every morning, you are driven around to the prison

and meeting place, you are driven away at lunch and then

driven back after lunch and at the end of the day. Back to

the ferry, back to the other side. There is a small hotel and

you get up and do it again the next morning.

A most illustrative example of how the detention rules and the interactions between lawyers and perpetrators affect the lawyers’ personally and in terms of their capacity to work is the issue of bringing items into the meetings with their client. Khan (2008, 267) describes the arbitrariness and malicious banning of items, such as banning flowers:

301

[B]ut flowers? The ban struck me as simply malicious. I was

always careful to have the thorns removed from roses and

always brought the flowers back out with me after a

meeting. The ban made zero sense, except as a way of

depriving the prisoners of another basic pleasure.

The affections of the lawyers are crucial for judicial proceedings in several ways. The practice of bringing items to the prisoners draws out the individuation between advocates and the perpetrators, to use Simondonian terms. For one, lawyers have first to gain the trust of the prisoners they represent (Interviewee K

2016; Khan 2008). They have to convince the prisoners that they are not disguised interrogators, in light of previous cases in which this has happened (Hutchinson et al. 2013). To do so, bringing in items, especially food, is important in order to show respect to the prisoners and for trust building (Khan 2008). Khan (2008, 205) explains that “[i]n a place like Gitmo, small acts of kindness could be immensely therapeutic”. She points out that:

there are a lot of restrictions, such as what you can take in

to your client. And this regulation can change daily and

depending on which guards are there. […] there are crazy

regulations about classification what you can discuss with

your client, what you can discuss with fellow lawyers. So

you know it’s a pain… it makes it difficult.

302

Prisoners’ affections also affect their lawyers and judicial proceedings.

Interviewee K (2016) explains that al-Nashiri knew nothing about the US judicial system and that he had thus no reason to believe that a US lawyer could work on his behalf. To gain his trust, Interviewee K (2016) just kept showing up and working with him. She nonetheless points out that “it’s hard, it’s hard, it’s harder with him because of his experience.” Similarly, the military lawyers who were part of the defence team had to be careful with their clothing: “we have to be careful of what they wear” (Interviewee K 2016). Interviewee K (2016) points out that the military lawyers should never wear fatigues, so as not to awake bad memories.

Another example is that going to Guantánamo Bay, the travel to the island, and the stay there affect the lawyers, activists, and journalists. For instance, Interviewee F

(2016) expresses that “being on the island is kind of tough.”

The legal team has further to counter the negative affections of their clients and foster the prisoners’ capacities for litigation. The mental decline of prisoners become visible to their lawyers “from visit to visit” (Khan 2008, 100). Lawyers have described their concern for how Al-Hajj’s hunger strike affects his mental and physical health: “[h]e experienced dizzy spells and started to have trouble standing up. His pulse dropped to seventy-six, and his hearing started to deteriorate, as did his eyesight” (Khan 2008, 184). Similarly, a prisoner told his lawyer “that the military had shot rays into his head. Moments later, the absurdity of his statement dawned on him. He looked at her and said, ‘I am fighting for my sanity’” (Khan

2008, 100). One of Mohamed’s lawyers (Bradley, 2014, no pagination) explains that she worries about her client: “I am really worried that if Binyam [Mohamed]

303 does not come home soon, he will leave Guantánamo Bay in a coffin.” Thereby, the prisoners’ affections I described in Chapter 5 impact on their decisions to litigate and how to litigate: the prisoners’ affections put pressure on the lawyers. For instance, Interviewee K (2016) stresses that “going there is the only way to check on the client” and that “no one else can visit” them. To go down there is “the only way to have a real conversation” (Interviewee K 2016). Interviewee B (2014) describes how the detention conditions affected his work in that he and fellow team members tried to visit their client as much as possible: it puts pressure on the legal team “from the human being standpoint” (Interviewee B 2014). Similarly,

Interviewee F (2016) emphasises that “[w]e are trying to make sure that someone is with him as much as possible. We will really try to not have more than a few weeks pass without having anyone visiting him. […] We go down all the time”

(Interviewee F 2016).

Moreover, the prisoner’s affections impact on the lawyers and investigators labour in that there is a tension between litigating a case and litigating for the client, as Interviewee B (2014) points out. That is, there is also pressure to push for the release of the prisoners as soon as possible, rather than as ‘justly’ as possible. Hicks, for example, signed an Alford plea implying a conviction through the Military Commissions, yet without pleading guilty, in order to get out of Gitmo as soon as possible (The Justice Campaign 2014a).

The emotional effects of their encounters with prisoners on those who deal with them cannot be underestimated. In Khan’s (2008) words: “[a]s I translated, I felt a lump growing in my throat. Suddenly, I couldn’t speak. Peter [a lawyer] and

Nusrat [the prisoner] watched as the tears dripped onto my shawl” (Khan 2008,

304 53). On a similar note, Interviewee K (2016) recalls that “when al-Nashiri told me what had happened he grabbed my hand and I felt an electric current.” Interviewee

K (2016) further points out the importance of her affections as well as that of her client during their meeting. In her words, “I felt we had to change the subject, have something positive ‘for both of us’”. Moreover, Interviewee K (2016) was warned by a torture expert that the torture of the prisoners, even if only read about, would affect her. Interviewee E (2015) also describes how the prisoners’ affections have repercussions on her: “I think it has had a profound effect on me and it does motivate me. I mean literally, I almost have flashbacks in my mind of the times when I have been speaking to prior victims of torture.” Importantly, Interviewee E

(2015) stresses the importance of meeting the prisoners in increasing her capacity to work, that is, how it motivates her and highlights that affections occur in interactions, between the speaker and the listener: “So I think it has had a profound effect on me and it does motivate me. I mean literally, I almost have flashbacks in my mind of the times when I have been speaking to prior victims of torture” (Interviewee E 2015). She describes her affections when listening to former prisoners’ ordeals:

[e]ven though it is difficult, you can see the emotions when

you speak to them. It’s kind of experiencing it with them. It

underscores the pravity of one human being inflicting pain

on another. You see it in a way that you don’t unless you

are talking to someone who went through it.

305 A final but most important point this section highlights is the importance of the judges’ decisions and actions. Interviewee F (2016) describes the issues of judges not deciding upon the application of laws. She explains that in all motions they have to argue for the applicability of laws, as the judge “has not made a decision yet.” She (2016) deplores that “the court simply accepted claims of confidentiality, state secrecy, with little challenge. [..] As far as I know, no reason was provided, in these particular cases”. The following extensive quote illustrates the unwillingness of the judge to evaluate, decide, and act can take:

I am not sure what we are waiting for. […] The judge has

made a lot of practical decision to try to move forward but

without really decision once and for all whether, for

instance... […] there’s a pending motion whether female

guards can touch the prisoners […] and the judge has not

ruled on it yet, but meanwhile he issued an interim that

says that until it is decided, female guards are to refrain

from handling detainees insofar as it involves touching. He

did not take a decision if females are allowed or not to

partake in forcible extractions yet and when his decision

comes, it might still be without giving the rule he is

reasoning with… (Interviewee F 2016) [...]. It is entirely

possible that when he decides yeah or nay, he’ll do so

without reasoning under which rule (Interviewee F 2016).

306 In conclusion, it is more than wilful misreading of legal orders that sets detention sites outside the reach of law and into spaces of law suspension or that produces the bare life status of prisoners. Interviewee D (2015) explains that lawyers’ day-to-day work is impossible to describe; it involves legal teams, doing research, extensive writing, and coordination with other lawyers, as well as with domestic and international organisations (Interviewee D 2015). Lawyers feelings, thoughts, and actions are central to judicial proceeding in that they have to evaluate and decide on lodging a litigation or not, writing a motion or not, which aspects of the ordeal to incorporate in the case, and so on. In court, the lawyers argue for their specific constitution of the case and against that of the opposing party. In this sense, then, Interviewee D’s (2015) statement that the day-to-day work is impossible to describe, takes on a novel sense, namely that of the impossibility of pre-categorising the entities affecting judicial proceedings and capturing all the effects of varied affections and evaluations. Spaces of intervention include lived experience, which exceeds representational categories.

6.4 Evaluating Within Judicial Proceedings

This chapter has put the creativity of judicial proceedings to the fore and now outlines the importance of the involved actors’ capacities to evaluate for judicial proceedings. The chapter has demonstrated that structures and litigation processes can only analytically be separated. Judicial proceedings are not simply given, but require the actors’ decisions and actions. It is therefore crucial to increase the actors’ mental capacities for, foremost, thinking. For instance, the lack of prisoners’ statements or the fact that statements are deemed classified

307 (Interviewee D 2015; Interviewee G 2016) has led to innovations. It has led investigators to experiment with novel forms of constituting evidence and has lead courts to adapt to these novel circumstances. Interviewee D (2015) points out that the lack of access to prisoners led to the implementation of the legal fiction of ‘a close family member or friend’, which enables lawyers to represent clients, whom they have never met nor talked to. For example, after the Australian press reported on the Rasul v Bush litigation, a lawyer was asked to represent Habib, through his wife, and Hicks, through his father (Interviewee D 2015).

Structures allowing and demanding judicial proceedings are important to foster responsibility, and thus, the possibility of accountability. Judicial structures constitute rights, laws’ contents, and laws’ geographical scope. Laws contribute to the variations of actors’ capacities in that the law casts human affects into creative and unforeseeable figurations” (Lefebvre, 2006, 54). To put it another way, “law is constitutive of human modality” (Lefebvre, 2006, 62). At the same time, actors affect judicial proceedings: litigating re-actualises meanings, contents and the reach of rights and duties. Or, as Interviewee F (2016) points out, “[t]he legal procedure is very tedious, but legally it’s very interesting. […] I’ve been made to make really creative arguments, because nothing is really given in Guantánamo

Bay.”

Judicial structures provide a milieu that affects both judicial proceedings and the actors’ capacities to evaluate. As both Arendt (1992) and Beiner (1992) emphasise, judgements are essential performances, because they constitute and sustain meaning and society. Arendt (1992) points out that judgements situate actors within society and render the world intelligible to individual human beings

308 and society. Similarly, Mussawir (2010a) draws out that judicial proceedings are part of, and form, society. With regard to extraordinary rendition, then, litigations are an important realm in which a common intelligibility of the world is temporarily reached. And in turn, judicial proceedings are performances dependent upon judicial structures and litigating actors. The judge or jury’s judgement can be appealed to in higher courts, up until the Supreme Court in the

US19 or the ECHR in Europe, as mentioned earlier in this chapter. Litigating up to the highest court implies re-constituting and re-arguing the case before each court.

Judicial proceedings allow appealing judgements in other courts or to demand a re-trial based on novel evidence. Interviewee F (2016) explains that people might re-file a motion due to new information, such as those publicised in the Torture

Report. These evidences also affect the lawyers’ evaluations of the merits of attempting a re-trial. These transformations of structures open up spaces of intervention. In Deleuzian terms, litigating is situational; it is a repetition with differences, rather than a subsumption. That is, while determining jurisdiction is a recurring process, it is never identical; each case is individual with particular difficulties. Or as Interviewee D (2015) describes:

I represent a client, who has a very difficult challenge, a

very difficult set of problems and I am trying to achieve an

outcome for him, that’s what I do. Same thing with David

Hicks; same thing with Mamdouh Habib. Their situation

19 There would also be the Inter-American Court of Human Rights (IACtHR).

309 was not as difficult, because they do not represent the same

problems. But, my approach to it is the same.

It is thus important to cultivate a milieu that enhances the capacities for responsibility. The milieu contributes to actors’ capacities to evaluate and can increase or decrease the capacity for responsibility. In this sense, every one matters. Interviewee C (2015) points out the importance of having a “sort of culture and NGOs that are available on the ground, or to do pro bono, or whatever.”

He explains that,

effectively there is a system in Europe for litigating these

kinds of things. The European Court, there is a mechanism

that you can use, basically, and there are plenty of lawyers

who can do it. There are NGOs who do this stuff all the time.

As Interviewee A (2014) puts it, the “governments only do what they can get away with, that’s the reality. And they keep getting away with it, so why would they stop?” She (2014) expands by pointing out the importance of a favourable milieu:

The law is not enough to prevent torture, let alone

rendition. Legal avenues are only one small way. It’s

cultural. It comes down to how we treat people, […] the

way that people feel and about how they identify

themselves. It’s the political environment as much as the

310 social environment. […] The law is really limited because of

the way it is structured and because of politics. […] the way

that we talk about each other and human rights and other

human beings that comes back, that’s a cultural thing. [...]

And that’s the breeding ground for the acceptability of

torture. And we are now moving toward a pro-torture

majority, here in Australia.

Most illustrative is Corsetti’s (2013b) experience described in Chapter 5, which shows that coming back to the US changed the quality of his decisions and actions due to a change in milieu. While in Afghanistan his actions were celebrated, but he became a black sheep when going back to the US (Corsetti 2013b).

Evaluating, deciding, and acting can be lengthy processes that involve changes in actors and circumstances. Evaluating and taking a decision requires effort and involves a certain amount of uncertainty. As I have argued, it is the very possibility to go one or the other way that renders the tension visible and allows one to deliberate. Our intellect then takes sides with some tendencies (Smith

2007). The problem with the conventional approach to evaluation is to assume the fixity of the self as well as that of the two options, such as to abuse or not to abuse or to litigate or not to litigate. That is, the ‘options’ evolve as well (Smith 2007).

The acts and decisions are themselves a coagulation of conscious and unconscious habits and structures. Affections, thoughts, and actions are the result of the very being in the world (Smith 2007).

311 Enhancing a milieu in such a way as to foster the habit of evaluating is crucial as it stands in contrast to obeying orders. According to Arendt, the issue with given universal standards is that they foster the tendency to obey given rules, rather than evaluate their content (Beiner 1992). Consequently, the content of standards can be exchanged (Arendt 1992). There is then a danger in pushing for universalised and unchanging values. Similarly, Mussawir (2010a) highlights that the danger of standardisation resides in implying a pre-selection of criteria independent of the case’s intensities; it is pre-judged on pre-given criteria. Every case is standardised (Mussawir 2010a). The issue is that judges and judgements assess only the question of whether the legal standards are achieved or not without questioning the structures necessary for doing the assessments nor the values themselves (Mussawir 2010a). Mussawir (2010a, 313) deplores the notion in which the judge’s function is reduced “to a kind of passive receiver of essentially executive governmental information or advice.” With regard to extraordinary rendition, then, an example of this type of danger is that defining and listing torture techniques prevents thinking. The CIA’s list of illegal torture techniques implies that every other technique is fine. Former President

Bush’s 2007 order enabled the agency to resume a form of

the program by specifically listing what sorts of prisoner

abuses counted as war crimes. That made it safe for

interrogators to use other tactics, like extended sleep

deprivation, that were not on the list (Savage, 2017, no

pagination).

312

For this reason, I have been arguing for the need to re-conceptualise and foster an institutionalised system of evaluation, rather than a system of moral judgement. For this, the thesis has drawn on Deleuze, who questions why people would want a fixed set of rules prescribing what is right and wrong, when this is effectively a form of enslavement (Smith 2007). Transcendence is what stops ethics, it hinders individuals thinking about how to increase their own capacities

(Smith 2007), rather than decreasing that of others. Thinking is central for it allows going beyond pre-given categories; it loosens the hold of universals (Arendt

1992). Evaluating combined with thinking then, is the means to avoid people are simply following orders. Thus, fostering habits of thinking and ethical evaluation are important.

In conclusion, what is required is change concurrently in social structure and actors’ habits. Structures play an important role in fostering human beings’ capacities. Lefebvre’s (2006) description of the limitations of laws by the capacities of the population creating them relates to Deleuze’s argument that one has the thought and actions one deserves. This has important repercussions in that it implies that simply overthrowing a structure does not turn the slave to a master:

“replacing masters with slaves who do not stop being slaves” (Deleuze 2002, 58).

Thus, actors’ capacities have to be increased as well.

313 Chapter 7

Why Foster the Capacity to Evaluate?

While she admits she was at the heart of the Nazi propaganda machine, with her tasks including massaging downwards statistics about fallen soldiers, as well as exaggerating the number of rapes of German women by the

Red Army, she describes it, somewhat bizarrely, as ‘just another job’. […] As she holds court, gesticulating wildly, with a broad grin on her face, it seems as if she even takes something restorative from her insistence that she simply acted the same way as most other Germans. […] ‘I know no one ever believes us nowadays – everyone thinks we knew everything. We knew nothing, it was all kept well secret.’

She refuses to admit she was naive in believing that Jews who had been ‘disappeared’ – including her friend Eva – had been sent to villages in the Sudetenland on the grounds that those territories were in need of being repopulated.

‘We believed it – we swallowed it – it seemed entirely plausible,’ she says. […] The details Pomsel chooses to focus on may reflect the way she has edited her own story so that she feels more comfortable with it. But it is also conceivable that a combination of ignorance and awe, as well as the protection offered by the huge office complex in the

314 government quarter really did shield her from much of

reality. […] [After the war] She was sentenced to five years’

incarceration in various Russian prison camps in and

around Berlin. ‘It was no bed of roses,’ is all she will say

about that time. […] She quickly resumed a life not

dissimilar to the one she had had, when she found

secretarial work at the state broadcaster once again,

working her way up to become the executive secretary to

its director of programmes and enjoying a privileged life of

well-paid work and travel before retiring, aged 60, in 1971.

(Connolly, 2016, no pagination)

Arendt (2003, 60–61) argues that we live in a time of ‘moral collapse, in that, “no one in his right mind can any longer claim that moral conduct is a matter of course”. Coining the term the ‘banality of evil’ in her assessment of Eichmann,

Arendt (1964) equates evil with the refusal to judge others’ decisions and actions, a refusal that was precisely what enabled Eichmann’s decisions and actions. In addition, she asserts that the public opinion

seems to be […] that ‘no one has the right to judge

somebody else. What public opinion permits us to judge

and even to condemn are trends, or whole groups of

people—the larger the better […].’ […] This goes with a

‘reluctance evident everywhere to make judgments in

315 terms of individual moral responsibility’ (Arendt, cited by

Beiner 1992, 99).

It is this refusal to see responsibility as an individual matter that leads to the defence that one is merely following orders when committing monstrous acts. The statement above from Joseph Goebbels’ secretary Brunhilde Pomsel illustrates the banality of evil exemplarily.

I have argued in this thesis that the banality of evil is present in the practice of extraordinary rendition; it is not restricted to the context of World War II. The guard’s statement that he is just doing his job and not evaluating others in Gitmo resonates with the above quote of Pomsel. The decisions and actions of perpetrators as well as other actors are important. As Interviewee F (2016) points out, the lawyers’ and judges’ evaluations about what rules to apply and how to apply them are crucial. Extraordinary rendition raises the question of some people’s inability to evaluate their decisions and actions. As Arendt (2003) points out, the question is how ‘normal’ people switch values. My claim, then, is that the capacity to evaluate is essential to avoid ethically dubious practices, such as extraordinary rendition. The thesis thus re-embeds both extraordinary rendition and the actors’ capacities within everyday operations and sets out that affections exceed the actors’ intentions.

I have drawn on Arendt’s conception of judgement and Deleuze’s notion of ethical evaluation to develop the concept of the capacity to evaluate. I use the term evaluation in order to emphasise the individual and ongoing ‘effort’ of evaluation, which assesses how one’s capacities are affected. To recall, Arendt’s depictions of

316 judgement have a strong judicial component, yet also encompass the individuals’ capacities to judge (Arendt 1964, 1992, 2003; Beiner 1992). Deleuze’s ethical evaluation is an important supplementation in that it highlights the difference between reactive judgement and active evaluation and posits the immanence of evaluation (Deleuze 1998; Smith 2007). The line of questioning of this thesis has been twofold: on one hand, it asks what the capacity to evaluate is and how it functions, and on the other, what the importance of evaluating is.

I have argued with this thesis for the merits of a Deleuzian, non- representational, and micropolitical approach and have demonstrated some of the insights it provides for understanding extraordinary rendition. Putting relationality to the fore in non-representational theories implies “a strong sense that the resulting orders are open, provisional, achievements” (Anderson and

Harrison 2010, 15). A non-representational approach sets the emphasis on questions of how are “orders disrupted, how do orders fail, and how are new orders come[ing] into being” (Anderson and Harrison 2010, 18–19). With regard to the methodology, then, a reason to adopt a non-representational and performative approach lies in the fact that it “is orientated by and to an open- ended future” (Anderson and Harrison 2010, 3). Importantly, non-representational approaches are not against representations, instead “even representations become understood as presentations; as things and events they enact worlds” (Anderson and Harrison 2010, 14). Another advantages of a non-representational approach and of performative research, is “to continue changing” and “not settle in the satisfaction of a judgment but [to] keep experimenting” (Anderson and Harrison

2010, 1). Yet, while the aim is to demonstrate that body and mind capacities are

317 effects of forces and require cultivation, the thesis does not proscribe how such cultivation is to be done. The methods used in this thesis and the scope of the thesis do not allow to evaluate means of cultivating capacities.

This approach foregrounds the viscerality of extraordinary rendition and conceptualises how actors feel, think, and act. It starts from intensities, rather than pre-given and restrictive categories, and so emphasises the multiple affections that actors experience. This allows going beyond the dualistic conception of categories, such as inside versus outside of territory, right bearing versus right-less beings, within or beyond the reach of legal orders, torture versus humane treatment, and resistance versus compliance. Foregrounding the lived experience that exceeds categories opens spaces of interventions beyond labelling, such as the detention milieu as well as the transfer practices. In addition, I have challenged the notion that the responsible human being is a given, to show how the very humanness of the human is implicated in the ongoing practice of ethical evaluation. I argue that the multiple affections that characterise human beings constitute spaces for thinking, ethical evaluation, and thus for responsibility.

My thesis has argued that the capacity to evaluate affects the practices of extraordinary rendition and is concurrently affected by those practices.

Conventionally, scholars and activists read extraordinary rendition as putting the prisoners beyond the protection of the law and perpetrators beyond accountability through a purposeful misreading of legal orders. Legal scholars have, on the whole, attempted to re-assert the territorial affiliation, subject status of perpetrators, and the law transgressions; while some geographical scholars have used Agamben’s concept of a space of exception to conceptualise spaces of law suspension and

318 right-less prisoners (Gregory 2006; Reid-Henry 2007). I have suggested that an approach that treats spaces of extraordinary rendition as spaces of exception is inadequate to explain the still undetermined nature of practices and bodies; in the

Deleuzian-Spinozist sense, these are spaces in which we do not yet know what a body can do. This openness, to the extent that we distance that concept from any easy association with positivity, attends also to the practice of evaluation, which, I have stressed, is an ongoing practice. To the extent that conventional approaches to evaluation tend to focus on intentions, they thereby posit an intentional break from the normal order and have no explanatory power for how extraordinary rendition functions or why some actors do not do this work of evaluation. In contrast, I have argued that the idea of exception is no magical safeguard to protect perpetrators from being held accountable. This is the case because there are, simultaneously, forces promoting and others impeding extraordinary rendition practices, which affect all actors. With this in mind, my thesis has argued for the need to analyse the everyday practices of extraordinary rendition and

Guantánamo Bay. This approach emphasises how the feelings thoughts, and acts of the actors involved affect extraordinary rendition and how in turn the practice affects them.

Firstly, my analysis has highlighted the site-specific affections, which all human beings experience. Extraordinary rendition is deeply embedded in society; there are no neutral actors. The US government intentionally and unintentionally frames many of its own citizens, for example, guards, military lawyers, and human rights lawyers, who then return to live on the US mainland. Everyone is affected, but this equally implies that everyone matters, insofar as the chain of actions

319 through which beings affect each other draws the line of causality and responsibility beyond the immediate practices of extraordinary rendition. Yet, as

Arendt (2003) insists, this cannot be akin to the claim that everyone is responsible, a claim that effectively means that no-one is.

My approach seeks to potentialise human behaviour by emphasising the continuous affections and thus the varying capacities of beings. Perpetrators aim to disorient prisoners with regard to time, space, and their conception of self, while prisoners re-territorialise themselves with regard to these aspects. The perpetrators use affective deprivation and assault in order to render prisoners less resistant and more sensitive to interrogation-torture. Thereby, disruptions are a means to avoid the prisoners’ numbness. The practices of inducing and maintaining affections are complex and fragile. This conception of human beings’ affections implies that the categorisations of affections in terms of torture versus humane treatment or compliance versus resistance are too restrictive to understand the framing of prisoners. It further allows an understanding of how the smallest and most surprising thoughts and actions, from keeping ‘pet’ ants to eating an apple, can function as forms of re-territorialisation. The implication is that while prisoners, perpetrators, and other actors are manipulated, such manipulations are neither complete nor total. The manipulation effectively exceeds control, because beings experience multiple affections and because these affections depend upon the individuals’ dispositions. For instance, perpetrators are affected by their actions, the prisoners’ responses, and the material and immaterial living conditions specific to their circumstances. As Interviewee K (2016) puts it, the perpetrators are affected by the torture they inflict. External as well as internal

320 forces push perpetrators simultaneously towards and away from abusing prisoners and so bear the potential to trigger thinking. Such factors are crucial to grasping the sense in which the perpetrators are capable of agency and thus responsibility.

Secondly, my analysis describes how the many actors and their capacities to decide and act affect judicial proceedings. Judicial proceedings rely upon the capacity to evaluate, a capacity which is constitutive of the notion of the responsible subject. At the same time, proceedings can inhibit actors’ capacities.

On one hand, multiple and diverse forms of labour go into the constitution of a judicial case. An ordeal is transformed into a judicial case through selecting information relevant to determining the place of offence, the controlling authority and the rights of prisoners and legal transgressions. The prisoners’ disorientation, strategies of secrecy and burying of important information beneath large amounts of non-relevant and unorganised data complicate the work of turning bits of information into evidence. In addition, the transfers proliferate spaces of law by multiplying both detention sites and custody officials.

On the other hand, constituting and litigating a case involves many people, their feelings, decisions, and actions. Many scholars and activists have drawn out the perpetrators’ various strategies to elude accountability (D’Arcus 2014; Gregory

2006; Satterthwaite and Fisher 2006). I do not dispute the intentionality of these strategies nor their effects, but aim to show that there is more than pure intentionality affecting actors and their capacity to be responsible. There is more to life than pure intentionality and rationality. Unsettling the categories of territory, subject status and legal orders illustrates that actors are composites and

321 transforming. Having rights as well as having no rights are effects of actors’ decisions and actions. Therefore, I challenge the view that human beings are due something ‘naturally’. During litigation processes, lawyers argue for their specific constitution of a case and against that of the opposing party (Interviewee B 2014).

The implication is that actors’ feelings, thoughts, and acts affect litigation processes. For example, lawyers evaluate how to constitute a case, which court to appeal to, and when to take a case before court. Another example is the judge’s decision on how to apply procedural rules and eventually the judgement for or against the claimer. Prisoners’ evaluations matter as well: they have to evaluate their capacities to litigate, despite the aftermaths of an extended period of abuse.

Most importantly, the prisoners’ affections, Gitmo’s geographical and social isolation, and the behaviour of guards affect lawyers’ possibilities of building a trusting relationship with their clients. In other words, there are forces external to the judiciary that affect judicial proceedings, such as economics, politics, and the media. As Interviewee A (2014) stresses, one should not “underestimate the media”.

The re-formulation of responsibility as a capacity and its importance for judicial judgement opens a wide field of research. With regard to extraordinary rendition, one major aspect that exceeds the scope of this thesis is the role of private corporations. For instance, Interviewee A (2014) was especially concerned about their role and the minimal accountability they are allocated. This aspect is all the more important, in that there are increasing attempts to allocate responsibility and accountability to these corporations, as Barkan (2011) explains.

322 My analysis further highlights the implications beyond the domain of US extraordinary rendition of this fostering of a responsible human being. Another major field of research is immigration detention, in which the actors involved similarly affect the practice of detention as well as the judicial proceedings that would affirm the immigrants’ right to stay or determine their deportation (Gill

2009). My analysis points out that the immigration detention camps are not simply places in which the law is suspended or in which rights and duties are simply offset. A non-representational and micropolitical problematisation of the human being, its capacities to evaluate and be held responsible, as well as my unsettling of legal categories, provide important insights for changing the contemporary practice of immigration detention.

With regard to responsibility and Human Rights, this thesis has argued that responsibility is the effect of affections from the individual’s dispositions as well as from its exterior milieu. This conception of responsibility sets out that “agents are responsible for injustice by virtue of their structural connection to it, even though they are not to blame for it (2003, 40 emphasis in original)” (Laliberté 2015, 60).

Mapping the uneven spatiality of social relations allows for a better grasping of

“how and when human rights discourses and practices can help (or hinder) the realization of progressive social change.” What is needed, Laliberté (2015) concludes, is to address the uneven geographies of power, citizenship, and access to resources, which produce the circumstances in which civil risk is produced and human rights violations identified, rather than “a rights-based approach that is entrenched in legalistic institutions” (Laliberté 2015, 58). Laliberté (2015) further points out that the question of responsibility in the context of Human Rights

323 discourses and practices is a rich field for geographical investigations both in terms of analytical and political innovations.

Human Rights are a complex research field and there are no easy solutions to protecting or legally compensating prisoners of extraordinary rendition.

Protecting and upholding Human Rights are “a much murkier and more troublesome project” (Laliberté 2015, 58) than often thought. As Noxolo,

Raghuram, and Madge (2011, 426) conclude “[r]esponsible agency needs therefore to be envisaged as based on relationships that are still evolving, still unsettled, much more risky and enigmatic for all concerned, avoiding settled certainties”.

Responsibility “has a spatial stretch and reaches beyond the individual to the wider world. This is a responsibility in which everyone is implicated, and responsibility can no longer be ‘passed on’” (Noxolo, Raghuram, and Madge 2011,

423).

A most important point my thesis makes is that it is not only the prisoners’ and perpetrators’, but also the lawyers’ and the judges’ feelings, decisions, and actions that matter. We, as ‘bystanders’ or researchers, are affected by these relationships that constitute “who we are, and at the same time involve degrees of complicity in suffering and inequality” (Noxolo, Raghuram, and Madge 2011, 424).

Anderson and Harrison (2010) stress that the background is not inert. Noxolo,

Raghuram, and Madge deplore that ‘we’ often fail “to fully face up to and accept their ‘contaminated’ position. This acceptance is necessary if responsibility is to be understood” (Noxolo, Raghuram, and Madge 2011, 422). Yet, as Noxolo, Raghuram, and Madge (2011) point out the uneven power-geometry is not simply one of locations or identities but of all involved relations. This point provides ample room

324 for further research (Lefebvre 2008; Moorhead and Cowan 2007; Mussawir

2010b). For instance, judgecraft and assembling judicial cases constitute an important and under-research field (Lefebvre 2008; Moorhead and Cowan 2007;

Mussawir 2010b).

The capacity to evaluate is crucial in that it constitutes the responsible human being that judicial proceedings presuppose. Evaluations are individual and structural; they situate beings within society, while constituting society at the same time. Arendt’s (1992, 106–7) statement that “[d]ebates constitute the very essence of political life” could be read as implying that judicial proceedings are an important realm in which a common intelligibility of the world is debated and temporarily reached. As explained, deliberation is possible when the affections are in a disequilibrium: “[a]rriving at a decision is a matter of ‘integrating’ (to use a mathematical term) the minute perceptions and inclinations in a ‘distinguished’ perception or a ‘remarkable’ inclination” (Smith 2007, 72). The important point is that neither the deciding self nor the options constituting a choice remain unchanged. Decisions and actions are not single objects, but constituted and affected by multiple minute perceptions. Beings are in tension, as they are

“multiplicities, and not unities” (Smith 2007, 69). Human beings’ feelings, thoughts, and actions are the result of their very being in a world, which is itself in constant transformation (Smith 2007). As such, capacities constitute one’s limits as well as one’s agency. Human beings and their capacities are neither completely free nor pre-determined. Their freedom consists in their capacities for transformation and acting otherwise.

325 How does ethical evaluation counter the banality of evil and ethically dubious practices? I have argued that the issue with universal values is that they foster the habit of obeying orders, rather than habits of evaluating. Pre-given rules destroy the responsible subject, because to renounce the task of evaluating is to renounce one’s agency. The distinction between judgement and evaluation is crucial, because transcendental standards foster habits of obeying rules, rather than habits of reflecting upon how thoughts and actions affect one’s capacities. The recent statement of the former Deputy Director of the CIA Michael Morell exemplifies the banality of failing to exercise this capacity to evaluate:

At the time, those [EITs] were done, they were deemed to

be legal under both US treaty obligations and under US law.

The Attorney General said they were legal on multiple

occasions. So they weren't torture. Torture is, ah, is... It

doesn't matter what you think is torture, it doesn't matter

what I think is torture, it doesn't matter what each of us as

individuals think is torture; it matters what the court thinks,

it matters how it relates it to what the law says. [...]

Congress passed laws and some of these techniques are

now illegal, some of these techniques are now considered

torture under US law. Water boarding is the best example.

Water boarding prior to this legislation: not torture, legal.

Post the legislation: now considered torture, illegal

(Barclay 2017, pt. 23.00-23.48min).

326

The implication is that the perpetrators’ habit of obeying orders inhibits their capacity to evaluate and diminishes their agency, lessening their capacity for responsibility. We should recall that there is no standard of evaluation; evaluations depend upon the beings’ transforming modes of existence. The advantage of my analysis is to draw attention to the importance of increasing the capacity to think, which constitutes the capacity to evaluate. Evaluation requires thinking, which increases agency and so constitutes responsibility.

The question arises: how do we cultivate habits of evaluating? The capacity to evaluate can be fostered precisely because it is a varying capacity. A geography of evaluation sets out that the capacity to evaluate is an immanent composite, affected by human beings’ interior and exterior milieu. That is, while the individuals’ dispositions are important, individual responsibility is equally dependent upon social structures. I have argued that the assumption that change can simply be willed is to overestimate the power of consciousness. Change is only possible through changes in habits of thoughts and actions and changes in social structures. Moreover, my thesis underscores the importance of everyday practices in constituting a fertile ground for the capacities to evaluate.

On one hand, fostering a milieu enhancing responsibility is a means to counter the expansion of extraordinary rendition and similar practices, at a time in which indifference and the unpopularity of the notion of individual responsibility prevail (Arendt 1992). In such a context, shaping judicial proceedings in a way that enhances the capacity to evaluate and takes into consideration the agency-within- relations of perpetrators is important. Judicial proceedings depend upon more

327 than reason, logic, and outcome (Mussawir 2010a). What is needed is an institutionalised system of evaluation, rather than a judicial system based on standardised and fixed values. As elaborated in Chapter 4, the institutionalised system of evaluation asks for the range of the actors’ agency. That is, it emphasises the situational character of judicial structures as well as that of the actors’ feelings, thoughts, actions and responsibility. As Smith (2007) points out, the system of evaluation asks for the possible, not the impossible.

On the other hand, I argue that thinking improves the capacity to evaluate.

To evaluate one’s sensations and thoughts increases one’s agency-within-relations.

In Arendt’s terms, “thinking—loosens the hold of universals” (Beiner 1992, 112) and so allows an apprehension of the richness of the world. As I have suggested, encounters trigger thinking when habits are no longer able to assimilate the information of the encounter. In Deleuzian terms, thinking is an active, but not necessarily conscious, means of disconnecting prior relations and re-connecting ideas. It unsettles prior relations and so frees evaluations from them; thinking allows going beyond pre-given categories. Consequently, what is needed is to evaluate one’s capacities and to make use of one’s range of freedom. Arendt indicates that judgements of taste are trained (Beiner 1992); and so too, the capacity to evaluate has to be cultivated. In sum, the thesis does not give easy solutions to how to hold perpetrators accountable nor how to cultivate the capacity for responsibility. How to best foster habits of evaluating and thinking for individuals’ interior dispositions as well as within social structures constitute a rich field for further analysis. Instead, the aim is to promote the idea that responsibility is not a given but a fluctuating capacity. In doing so, this approach

328 opens up spaces for further researching and experimenting how capacities can be fostered effectively.

The political implication of my thesis is that judgements of accountability or nonaccountability rely on a responsible subject that first needs to be created and sustained, else, judicial judgement does not make sense. The capacity to evaluate and the institutionalised system of evaluation are not straightforward subsumptions. Ordinary practices of prisoners, perpetrators and lawyers allocate and determine accountability through visceral litigation processes. The implication is that judicial judgements are ‘never-ending’. As Interviewee G (2016) points out, the fact that no accountability has been reached so far does not preclude its assertion later on: such “type of cases can take a very very long time. And I think we have to keep some perspective on the length of time investigations and prosecution can take.” In conclusion, perpetrators can be held accountable, however, the capacities of beings capable of both responsible action and evaluation have to be fostered. While capacities bear the danger of being reduced, they also bear the potential to be increased. It is exactly because perpetrators are exposed to constant and multiple affections that they can evaluate and thus have the capacity to be responsible.

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366 Appendix — Extraordinary Rendition Ordeals

Maher Arar

Maher Arar is a Canadian citizen born 1970 in Syria, who was abducted in

September 2002 at the New York airport as he was travelling home after a holiday

(Arar 2006; Committee on the Judiciary and Committee on Foreign Affairs 2007;

LaHood 2005; Lobel 2008). The Immigration and Naturalization Services (INS) detained him on the grounds that he was identified as a member of a terrorist organization (Lobel 2008). After two weeks of detention, Arar was sent to Syria, where he suffered severe and ongoing beatings (LaHood 2005). Arar was then held for a year in Syrian prisons, mainly at the Palestine Branch of Syrian Military

Intelligence, in a cold, damp, underground cell (Lobel 2008). Arar received scant food, so that at the end of his detention he had lost about 18kg (Lobel 2008). In his first twelve days in Syria, Arar was interrogated for up to eighteen hours a day, and was physically and psychologically tortured (LaHood 2005). In October 2002, US officials forwarded their dossier against Arar to Syrian officials (Lobel 2008). Yet within 12 months, Syria released Arar concluding that he had no connection to terrorism (Lobel 2008). During his whole ordeal, Arar was never charged with any crime (Lobel 2008). Arar still suffers from the aftermath of his extraordinary rendition and has difficulties relating to his wife and children (Lobel 2008). Arar’s case is interesting because he was never brought to Gitmo, and because his ordeal involves many actors beyond the CIA, including the FBI and the US Immigration and Naturalization Service, but also non-US agencies of the Syrian and the

Canadian governments (LaHood 2005; Lobel 2008). Eventually, the Canadian

367 government officially recognised Arar’s innocence. Despite Canada’s recognition, the US has yet to recognise his ordeal (Lobel 2008).

Ahmed Errachidi

Ahmed Errachidi (also known as Ahmed Rashidi or the General) is a British citizen born 1966 in Morocco (Errachidi 2013; Reprieve n.d.). Errachidi was seized in Pakistan and held in custody, during which time he was interrogated by FBI agents (Errachidi 2013; Reprieve n.d.). Before his release in April 2007, Errachidi was detained in Pakistan, Afghanistan (Kandahar and Bagram), and eventually

Gitmo (Errachidi 2013; Reprieve n.d.). In his book, he vividly details his ordeal and how prisoners ‘resisted’.

David Hicks

David Hicks was born in Australia in 1975 (Crawford 2007) and was kidnapped by the Northern Alliance during the US invasion of Afghanistan and sold to US officials (Hicks 2010). After being handed over to US officials, Hicks was first detained on two US ships, the USS Bataan and Peleliu, where he experienced beatings and sleep deprivation (Amnesty International 2004; The Justice

Campaign 2014b). He was then brought to the Kandahar prison, where he experienced sexual humiliation and abuse, before being transferred to Gitmo as one of the first detainees on January 11, 2002 (Hicks 2010). Hicks's ordeal is significant, for he went through years of judicial proceedings under the changing

Military Commissions (The Justice Campaign 2014a). Hicks was the first Gitmo

368 prisoner to be allocated a lawyer in December 2003 (The Justice Campaign 2014a).

His Military Commission case started in November 2004 and was successively interrupted and recommenced until charges against Hicks were eventually dissolved in June 2006 (The Justice Campaign 2014a). In July 2006, Hicks was granted UK citizenship, but it was revoked the following day (The Justice Campaign

2014a). In February 2007 new charges were brought up against him and in March

2007, he signed a so-called Alford plea (The Justice Campaign 2014a). The plea sentenced him to 7 years in total with an additional one-year gag order. (The

Justice Campaign 2014a). In the Alford plea, he admitted that there were evidences against him, yet withheld any admission of guilt. In May 2007 he was transferred to Australia and 7 months later he was eventually released (The Justice Campaign

2014a). In October 2012, the US Appeals court ruled that the charge of ‘Material

Support for Terrorism’ is invalid – of which Hicks was ‘convicted’ – and so in

February 2015 Hicks’ conviction was eventually repealed (The Justice Campaign

2014a).

Khaled El-Masri

Khaled El-Masri, a German citizen born 1963 in Lebanon, was abducted at the Serbian-Macedonian border while going on holiday (El-Masri 2006; Marty

2006). Subsequently, El-Masri was brought to a hotel in Skopje, where Macedonian officials interrogated and detained him incommunicado (El-Masri 2006). The US officials transmitted questions to the Macedonian Intelligence and did not take an active role in this interrogation at that point in time (Marty 2006). It was only three weeks later that El-Masri was transferred into US custody (El-Masri 2006).

369 El-Masri was brought to a black site called Salt Pit north of Kabul (Afghanistan)

(El-Masri 2006). There, he was detained in a solitary cell for about four months, with no reading or writing materials and not once being allowed outside (El-Masri

2006). At Salt Pit, El-Masri was also interrogated by the native German speaker

‘Sam’ (El-Masri 2005, 2006). Yet, for the duration of his detention, he was denied meeting German representatives or a lawyer and he was not brought before court

(El-Masri 2005, 2006). Moreover, former Secretary of State Condoleezza Rice herself conceded that it had been known shortly after his capture that there had been a mix up in names and that his passport was genuine (Ellis 2006). It nonetheless took months before he was eventually released. El-Masri was released in May 2004 in Albania, without ever having been charged with any offence (El-

Masri 2006). The Albanian officials, after only a couple of hours and a few questions, put him on a flight back to Germany (El-Masri 2006, 20–22). El-Masri’s nightmarish ordeal was not over though: El-Masri’s wife and children had left the country to go to his wife’s family in the Lebanon, not knowing where El-Masri was and if he would ever come back (El-Masri 2006). On the other hand, as for most prisoners, maltreatment has long term psychological effects (Davidson 2012). El-

Masri’s ordeal is interesting because he too was never brought to Gitmo. While the

US courts dismissed his case, and no US or German officials have been held accountable so far (Lobel 2008), the ECHR judged in 2012 that el-Masri had been illegally detained by the Macedonian government (ECHR 2012a).

370 Sami Al-Hajj

Sami Al-Hajj was born in 1969 in Sudan (Buzby 2008). He is an Al Jazeera journalist, who was arrested in Pakistan, while travelling to Afghanistan for work, in December 2001 (Goodman and Al-Hajj 2013; Hutchinson et al. 2013; Khan

2008). He was detained in Afghanistan and in Gitmo, until he was eventually released in May 2008. His case vividly illustrates the circular practice of hunger strike — force-feeding. In January, he went on hunger strike for 438 days

(Goodman and Al-Hajj 2013). He experienced repeated torture, hooding, attacks by dogs, and was hung from the ceiling (Goodman and Al-Hajj 2013).

Binyam Mohamed

Binyam Mohamed, born 1978 in Ethiopia, had been living since 1994 in the

UK and was waiting to be granted asylum (Stafford Smith 2007b). In April 2002 he was seized in Pakistan at Karachi airport by the Federal Investigation Agency of

Pakistan, while attempting to return home using a friend's passport (Stafford

Smith 2007b). Mohamed was initially detained at the airport for a few days, then transferred to Landi, a prison in Karachi (Stafford Smith 2007b; Watt et al. 2007).

After seven days Mohamed was transferred to an interrogation centre of the

Pakistani Intelligence service in Karachi, where he stayed for two months

(Scheinin et al. 2010). Later he was flown to Islamabad and detained in the Special

Branch office, where he was detained a few days before being handed over to US officials (Stafford Smith 2007b). The US officials rendered him to Morocco, where he was severely tortured. Over 18 months, Mohamed was shuffled between three separate unknown detention centres (Stafford Smith 2007b). In January 2004,

371 Mohamed was transferred to the Dark Prison in Afghanistan, where he remained for four months (Watt et al. 2007). Mohamed was later transferred to Bagram Air

Base in Afghanistan, a US military base in which the CIA conducted (and maybe still conducts) interrogations(Stafford Smith 2007b). He remained there again for four months (Stafford Smith 2007b). In late May 2004, Mohamed was brought to

Guantánamo Bay, where he stayed 4 years and 5 months until his release in

February 2009 (Scheinin et al. 2010). In August 2007, the UK asked for Mohamed’s return, but the US refused (Hutchison 2014); in October 2008 the charges against him were dropped and in February 2009 he was back in the UK (Hutchison 2014).

While the UK government compensated him, it did not officially recognise his innocence (Burns and Cowell 2010). He gives visceral descriptions of his abusive ordeal in the diaries he sent to his lawyer.

Abd al-Rahim al-Nashiri

Abd al-Rahim al-Nashiri is a Saudi Arabian citizen born in 1965 (Rendition

Research Team n.d.; Singh 2013). He was captured in October 2002 (Rendition

Research Team n.d.; Singh 2013). Al-Nashiri was detained in the United Arab

Emirates, Thailand, Poland, Morocco, Romania, Afghanistan, and Guantánamo Bay.

He was possibly detained in Lithuania as well (Rendition Research Team n.d.). Al-

Nashiri experienced severe abuse and remains detained in Gitmo (Singh 2013). His case is interesting on account of the many places he was detained and the many court documents available. In April 2011 al-Nashiri was charged under the Military

Commission for his alleged role in the attacks on the USS Cole (in 2000) and on the

(French) civilian oil tanker MV Limburg in 2002 (Singh 2013). His Military

372 Commissions trial is ongoing and there is a habeas litigation in suspension before a

US federal court (Interviewee K 2016). In addition, a litigation case on al-Nashiri’s behalf was lodged against Poland and against Romania (Open Society Foundations

2015). The case against Poland is joined with Zubaydahs’ and Poland was eventually sentenced in a final judgement in 2015 (ECHR 2015a; Open Society

Foundations 2015). The case against Romania is ongoing and there was a hearing as recent as June 2016 (Registrar of the Court 2016a).

Mohamedou Ould Slahi

Mohamedou Ould Slahi is a citizen of Mauritania (Slahi 2015). He voluntarily went to the Mauritanian authorities in November 2001 for questioning, from whence he was transferred to CIA custody (Singh 2013). Later that month, he was rendered to Jordan, where he was detained for eight months (Singh 2013).

Afterwards, he was flown to Afghanistan, in July 2002, and was held at Bagram Air

Base for three weeks (Slahi 2015). He eventually arrived in Gitmo in August 2002

(Slahi 2015). He was eventually cleared for release in July 2016 (Ackerman 2016) and released in October (ACLU 2016). He wrote a detailed diary of his ordeal that has just recently been publicly released (Slahi 2015).

Abu Zubaydah

Abu Zubaydah (also known as Zayn al-Abidin Muhammad Husayn) is a stateless Palestinian born in 1971 (Rendition Research Team n.d.; Singh 2013). He was captured in March 2002 in his house in Pakistan by a team of US and Pakistani

373 agents (Rendition Research Team n.d.; Singh 2013). Zubaydah was detained in

Thailand, Poland, Lithuania, Morocco, Pakistan, and Afghanistan. He was held for years in secret and was eventually transferred to Guantánamo Bay in September

2006, where he remains (Singh 2013). Zubaydah was the first prisoner to experience enhanced interrogation techniques (EITs). In fact, they were developed on him (see Bradbury 2005). Soufan (2011), a former FBI agent, describes how he interviewed Zubaydah by means of rapport-building techniques and describes the conflicts and competition between the FBI and the CIA; eventually the FBI withdrew its agents (Soufan 2011). Zubaydah was further detained in many places and many court documents are available. A litigation case against Poland was lodged (joined with al-Nashiri) and won in 2015 (ECHR 2015c). Another case against Lithuania was lodged and there was a hearing as recent as June 2016

(Registrar of the Court 2016b).

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