Guantánamo Confidential: Inscription of the Subject in Literature and Law, and Detainees as Legal Non-Persons at Camp X-Ray

Abstract

Kafka’s fiction, coming out of the fin de siècle of the Habsburg Empire, has much to tell us about the relationship between subjectivity, legal institutions and processes, and textuality. Based on the decadent 1899 novel by Octave Mirabeau, Le Jardin des Supplices, a work banned in Germany as pornography that depicts the sadistic torture of prisoners by officials indifferent to the humanity of their victims¹, Kafka’s parable of political terror as power over the bodies of prisoners (“In der Strafkolonie”, 1919), the power of confinement and compulsion of the body of the prisoner to become an expressive medium of his truth, returns uncannily to home in the weird extraterritoriality of “Gitmo”, as military personnel truncated the name for the locale of Camp X-Ray in the Guantánamo Bay facility the U.S. has occupied in Cuba since 1902. An Act of the English Parliament in 1679 created the legal concept of “habeas corpus”, Latin for “that you have the body”, but the legal meaning of which is that a prisoner or detainee must be brought before a court of law to hear the charges against him or her. The Bush Administration’s novel legal theories related to its war on terror effectively vacated the principle of habeas corpus, as this chapter will develop, and in the place of this vacated tenet that had been a pillar of British Common Law and American law for three and half centuries, in the space it had occupied, a topos that now represents the body of the subject in the law sous rature, we return to the etymological meaning of the term that refers to “producing a body,” the production, or making, of the “terrorist body” that was a focus of the previous chapter, and to which I will return in this one.