Indefinite Detention / Enduring Freedom: What Former Detainees’ Experiences Can Teach Us About Institutional Violence, Resistance and the Law By Kimberly Alexa Koenig A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Calvin Morrill, Chair Professor Marianne Constable Professor Laurel Fletcher Professor Jonathan Simon Fall 2013 Abstract Indefinite Detention / Enduring Freedom: What Former Detainees’ Experiences Can Teach Us About Institutional Violence, Resistance and the Law by Kimberly Alexa Koenig Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Calvin Morrill, Chair This dissertation focuses on the experiences of former Guantánamo detainees as communicated in 78 interviews. An analysis of those interviews centers on former detainees’ “worst” experiences to parse how those experiences might inform society’s understanding of cruel, inhuman and degrading treatment. The dissertation is organized into nine chapters. Chapter one situates this study in the context of the United States’ response to the events of 9/11, with an emphasis on the imprisonment of individuals at the U.S. detention center in Guantánamo Bay, Cuba. This chapter summarizes the major philosophical, legal and social science research relevant to detainees’ experiences—including analyses of cruel, inhuman and degrading treatment—and explains how this dissertation contributes to existing empirical work. In this chapter, I argue that Guantánamo is an example of the United States’ use of incarceration as a means of social control that has extended beyond the nation’s borders, and discuss the possible relationship of political-military prisons to the phenomenal growth of supermax prisons in the United States. Chapter two offers a history of the prohibition against cruel, inhuman and degrading treatment through the end of the twentieth century. This chapter expands upon the legal framework presented in the introduction to demonstrate the prohibition’s origins and evolution, and the ways in which judicial interpretations have increasingly distorted its intended breadth. Of course, understanding the law and its contemporary expression requires attention to the political forces that motivate its development and shape its parameters. Accordingly, chapter three builds on the history in chapter two to describe the United States’ legal and political responses to the events of September 11, 2001. In the process, chapter three illustrates the legal and political voids into which many detainees were thrust, a phenomenon that culminated in an invisibility and voicelessness that facilitated later abuse. 1 Chapter four introduces the men whose stories form the basis of this dissertation. This chapter provides an overview of my research methodology, explains the sources for the interviews, highlights research limitations, and issues important caveats regarding the extension of my dissertation findings. Chapter five, the first empirical chapter, details former detainees’ responses to the question, “what was your worst detainment-related experience?,” to demonstrate the varied nature of abuse and reveal the ways in which existing jurisprudence fails to adequately recognize and prevent numerous harms. Importantly from a theoretical perspective, chapter five illustrates several of the mechanisms that contributed to detainees’ experience of cruel, inhuman and degrading treatment, and demonstrates the link between ill-treatment and threats to identity. Chapter six focuses in on one form of degrading treatment—sexual violence—to provide a more fine-grained analysis of the relationship between degrading treatment and identity. Descriptively, this chapter contributes to an empirical understanding of male sexual violence, and especially sexual violence as it occurs in political-military prisons. Finally, this chapter underscores the critical role of culture in interpretations of cruel, inhuman and degrading treatment, arguing that objective and subjective legal analyses of such treatment should better incorporate cultural perspectives. Chapter seven posits that inhuman and degrading treatment are experienced as particularly egregious because they threaten a social—versus physical—death. This chapter illuminates the mechanisms through which social death occurred at Guantánamo, and discusses how for many men the experience of social death extended beyond their confinement into their release. Chapter eight, the final substantive chapter, addresses the issue of prison resistance. Empirically, this chapter documents former detainees’ stories of resistance, providing a basis for better understanding when, why, how and in what ways former detainees resist institutional practices. This chapter also highlights when resistance did not occur, drawing a negative space around the phenomenon of resistance to more clearly pinpoint its parameters. Theoretically, this chapter emphasizes the ways in which threats to identity engender resistance. I conclude that much detainment-related resistance reflects—at its core—a struggle for the survival of both social and self-identity, and that failing to recognize this link can have serious implications not only for prisoners, but for prison personnel and the institutions in which they are embedded. Chapter nine weaves these chapters together to present an empirically-supported theory of cruel, inhuman and degrading treatment, one that is intimately tied to the stories of former detainees. In this chapter, I make several recommendations regarding the ways in which detainees’ experiences might inform future jurisprudence, enabling that jurisprudence to more fully acknowledge the character and scope of cruel, inhuman and degrading treatment. This chapter explains how the dissertation, when considered as a whole, offers a detailed analysis of the very worst institutional treatment, as perceived by those who were themselves once labeled the very “worst.” 2 This dissertation is dedicated to the men who have so courageously shared their stories of Guantánamo, and to Zander West Mercer and Sophie Mielle Mercer, whose lives have marked its progress. i Table of Contents Acknowledgements ………………………………………………………………………... vi I. War of Terror: What Former Detainees’ Stories Reveal About Political-Military Prisons and the Legal Phenomenon of Cruel, Inhuman and Degrading Treatment …….. 1 A. Background on Political-Military Prisons ……………………………………. 2 B. Dissertation Overview …………………………………………………………. 5 i. Research Questions ……………………………………………………… 5 ii. Dissertation Structure ……………………………………………………9 C. Philosophical, Legal and Social Science Perspectives on Cruel, Inhuman and Degrading Treatment ………………………………………….. 11 i. Philosophical Frameworks ………………………………………………. 11 ii. Legal Frameworks ……………………………………………………… 13 iii. Social Science Frameworks ……………………………………………. 14 a. Empirical Victimology Studies …………………………………. 15 b. Total Institutions ………………………………………………... 20 c. Resistance, Meaning-Making and Identity ……………………... 21 d. Summary of the Literature ……………………………………… 24 D. From the Micro to the Macro: The Relationship Between Cruel, Inhuman and Degrading Treatment and Social Control ……….......…………... 25 E. Implications for Domestic Law ………………………………………………… 29 F. Conclusion ……………………………………………………………………… 32 II. A Legal History of Cruel, Inhuman and Degrading Treatment ………………………... 33 A. Evolution of the Prohibition Against Cruel, Inhuman and Degrading Treatment 35 i. Contemporary Basis for the Prohibition ………………………………… 35 ii. Evolution of the Prohibition in the Wake of World War II (1945-1948) . 37 iii. Evolution of the Prohibition in Later Treaties and Cases (1960s-1990s) 43 iv. Int’l Criminal Tribunals for the former Yugoslavia and Rwanda ……... 50 B. Kissing Cousins: The Legally Ambiguous and Uncomfortably Close Relationship of Cruel, Inhuman and Degrading Treatment, and Cruel and Unusual Punishment …………………………………………… 55 C. Major Issues that Emerge from these Histories ………………………………... 60 D. Conclusion ……………………………………………………………………... 64 III. The Impact of Post-9/11 Politics on Detainee Treatment and Related Laws …………. 65 ii IV. Descending into the “Worst”: A Series of Realist and Confessional Tales …………... 78 A. Interview Methodology: A Tale of Two Projects ……………………………… 78 i. The Witness to Guantánamo Project ……………………………………. 78 ii. The U.C. Berkeley Project ……………………………………………… 80 iii. Data Overlaps …………………………………………………………. 81 B. Guantánamo: The Place and the People ……………………………………….. 82 i. The Place: The United States Naval Base at Guantánamo Bay, Cuba …. 82 ii. The People ……………………………………………………………… 84 C. The Study ………………………………………………………………………. 86 i. An Introduction to the Interviewees …………………………………….. 86 ii. The Coding Scheme ……………………………………………………. 91 iii. Themes that Emerged During Coding …………………………………. 94 iv. Inductive Analysis ……………………………………………………... 96 v. Analytic Limitations ……………………………………………………. 97 D. Confessional Tales ……………………………………………………………... 98 V. The “Worst”: A Closer Look at Cruel, Inhuman and Degrading Treatment ………….. 103 A. Chapter Methodology …………………………………………………………. 107 B. Conceptualizing Cruel, Inhuman and Degrading Treatment from a Detainee-Centered Perspective …………………………………………….…... 109 i. Good Treatment …………………………………………………………. 110 ii. Inhuman Treatment ……………………………………………………... 112 a. Treatment of Detainees as Animals …………………………...... 114 b. Treatment