On a brilliantly sunny, fall afternoon, a dozen members of Witness Against Torture — a grassroots group long dedicated to closing the prison camp at Guantánamo — broke from our marathon strategy meeting to see the GTMO-themed installation of the renowned performance artist Laurie Anderson. Titled “Habeas Corpus,” the groundbreaking exhibit was up for just three days, from October 2-4, in New York City. Invited to attend by Guantánamo attorneys who had collaborated with Anderson, we were eager to see what a gifted artist would make of subjects in which we had become reluctant, amateur experts.
The trek uptown felt like traversing both social worlds and centuries. Our starting point was the dilapidated auditorium of Maryhouse, the fabled East Village headquarters of the radical nun and founder of the Catholic Worker movement Dorothy Day. Commended by Pope Francis in his address to the US Congress, Day enjoys newfound fame. Yet Maryhouse stands as a defiant holdout of a disappearing New York. Frayed posters from generations of political struggles hang from its walls, while stacks of the Catholic Worker newspaper, still sold at the Depression-era price of a penny, dot the floor plan.
Our destination was the resplendent Park Avenue Armory in an achingly posh stretch of the Upper East Side. Converted with the aid of seven-figure gifts into a state-of-the-art exhibit space, it seemed an incongruous vessel for a topic so grim as torture at a dusty island gulag.
Entering the exhibit was to be transported again. A huge disco ball hung suspended in the dark, cavernous hall dark. Amidst the undulating dollops of its reflected light, one had the sensation of floating in outer space. The thrum of expertly toned guitar feedback, engineered by Lou Reed collaborator Stewart Hurwood, enveloped the room. Live musicians drifted about to create impromptu accompaniment. One heard singing evocative of a muezzin’s call to prayer, classical strings, something like a North African bagpipe, and Anderson’s own work on the electric violin.
The space was ethereal, eerie, and absolutely beautiful. My immediate comparison was to “Dream House,” the sublime sound-and-light installation currently on view at Manhattan’s Dia:Chelsea. (Combining minimalism and psychedelia, and with its shag carpet floor, it feels equal parts gallery, cathedral, and retro stoner den.) As my senses melted into trippy pleasure, my discomfort with “Habeas Corpus” stiffened. The precise risk the exhibit courted was aestheticizing or even falsifying something wicked. With terrible irony, the sensory deprivation of “enhanced interrogation” converts into sensory delight. Confinement yields to expansiveness. Nothing about the prison in Guantánamo, my political mind protested, should inspire this kind of art, dreamily enjoyed by connoisseurs of the urban avant-garde.
Any chance of extended reverie or confidence in the fairness of this criticism, however, was disrupted by the exhibit’s focal point: the massive, three-dimensional image of Mohammed el Gharani. Originally from Chad, el Gharani was sent to Guantánamo in 2002 at age 14. He was freed seven years later after being tortured in various settings. Filmed at an undisclosed location in West Africa, el Gharani was beamed in real time into the Armory, where he “sat” still on a sculpted chair. El Gharani himself could observe the spectators observing his image.
Those released from Guantánamo are forbidden from entering the United States. By means of Anderson’s hi-tech wizardry, el Gharani thus achieved what no former detainee has been able to do: to “appear” in the United States in an immediate, near-corporeal way. While el Gharani took scheduled breaks from his hours of sitting, pre-recorded audio testimony about his ordeal played over his empty chair.
El Gharani was present, absent, and never really there. With this haunting effect, “Habeas Corpus”complicates its own message, while opening up multiple readings of its aesthetic. Hopeful but muddled, “Habeas Corpus” mirrors the irresolution of the reality it seeks to represent.
You Shall Have the Body
Much of the exhibit’s substance owes to its interplay with its title, “Habeas Corpus.” Habeas corpus has a special place in American law and in the legal and moral landscape of the “war on terror.” The term translates, as the exhibit materials explain, into “you shall have the body.” Formally originating in the Magna Carta, it was regarded by the United States’ founders as an essential bulwark against tyranny. No authority, habeas dictates, can throw you into secret, incommunicado detention. Instead, the captor must present the prisoner (“the body”) before a competent tribunal to determine the legality of his detention. Different from a criminal trial judging guilt or innocence with respect to a specific charge, habeas challenges the initial act of imprisonment. Indeed, the vast majority of the nearly 800 men who have been held at Guantánamo have never been charged with crimes.
Whether the Guantánamo detainees had habeas rights for years dominated legal and political wrangling over the prison. The Bush administration notoriously insisted that the detainees, by virtue of being held on leased, Cuban territory and ascribed the novel status of “enemy combatants,” had no such rights. Facing pushback from the courts, it concocted in 2004 the Combat Status Review Tribunals as a pitiful stand-in for due process. The sham proceedings traded in secret, fanciful “evidence” often obtained under the duress of torture. As this system sputtered, a Republican Congress legislated away habeas rights for the detainees.
The detainees’ status as non-persons also dominated years of anti-Guantánamo activism. The signature motif at demonstrations has been figures dressed in the detainee “uniform” of an orange jumpsuit and black hood. Especially when displayed at shrines of American democracy in Washington, D.C., the ghostly icons indict the myth of American fidelity to the rule of law with the reality of brutal, lawless detention.
Witness Against Torture has dramatized with special force the denial of the Guantánamo detainees as juridical subjects vested with rights. In January 2008, just when the Supreme Court was considering whether they had habeas protections, we held a mass arrest at the Supreme Court building. To the arresting officers, many of us gave the names of individual detainees in lieu of our own. The detainees’ names, to our happy surprise, were entered into the court docket. At our subsequent trial, we were able to give the detainees a symbolic version of what they had been refused to that point: their day in a US court. Some defendants prefaced each statement by indicating that they were speaking on behalf of a specific prisoner. Others maintained total silence so as to register the inability of the detained men to speak on their own behalf.
We Hear You and See You
Only with its June 2008 Boumediene decision (announced shortly after our conviction on misdemeanor charges) did the US Supreme Court definitively rule that the prisoners at Guantánamo had a Constitutional right of habeas corpus. Long-filed habeas petitions soon reached federal judges, with the presumed power to set free those unjustly bound. El Gharani’s petition was heard in 2009 and decided in his favor by US District Judge Richard Leon. Reproduced in excerpts in the thick, over-sized exhibit booklet, his ruling oozes with contempt for the government’s flim-flam case. The unclassified versions of other early habeas rulings, publicly available but rarely read outside of small legal circles, expose the ludicrous nature of many detentions. Merely publishing Judge Leon’s ruling in such a high-profile context is itself a public service.
Anderson’s “Habeas Corpus” shows at least a simulacrum of el Gharani’s body. Doing so, it nearly fulfills the essence of the legal concept, distilled to a literalism. The whole exhibit can be read as the digitized telling of a legal-ethical pun. In the installation’s signal moment of triumph, el Gharani narrates his watching Judge Leon’s ruling on closed circuit TV in Guantánamo. His guards jump for joy as they explain to him that he has won his case. Though hardly a tribute to the US legal system, the exhibit suggests that the near-broken wheels of justice can still turn. We behold the smiling, adult el Gharani, surely wounded by his captivity but free.
This spectacle was especially resonant for one among our crew, Luke Nephew of the Peace Poets. Nephew was part of the 2008 Supreme Court arrest. He had taken as “his” detainee name Mohammed el Gharani, and he carried the identity with him at future protests. Captured on YouTube, Nephew can be seen signing off as “Luke Nephew, aka Mohammed el Gharani” after a stunning performance in 2011 outside the US Department of Justice of his poem “There is a Man under that Hood.” The poem intones, “To the detainees / no matter how broken and shattered and tortured you feel / there are people in these United States / who hear you and see you / who know that you are real.”
Without quite knowing it, the installation spoke to years of activist efforts to represent the detained men, both in their legal erasure and their humanity. As if in dialogue with Nephew’s poem, “Habeas Corpus” permits us to hear and see el Gharani. In this light, the exhibit hall exists as a de-territorialized anti-Guantánamo in the abstract realm of the law. Its solemn beauty radiates the wonder of el Gharani’s return from oblivion.
A Trophy in the Library
But there’s a rub. No federal judge has freed anyone from Guantánamo, including el Gharani. Boumediene may have granted habeas rights. But the Supreme Court did nothing to mandate that the US executive branch act on the judges’ rulings. As a result, many detainees successful in their petitions continued to languish in Guantánamo. As habeas attorney Sabin Willett wryly put things: “A fellow wins his case against the government and the remedy is for the court to say to the jailer, ‘please will you do something about it?’” By April 2011, Willett pronounced Boumdiene “a trophy hanging in the library, impressive and lifeless.”
Worse, the Obama administration — eager to limit the power of the courts — appealed unfavorable rulings. The result was not only the reversal of individual judgments but the dramatic revision by conservative judges of how such cases are adjudicated, stacking the deck against the petitioners. An October 2011 appeals court ruling in the case of Adnan Latif — a mentally troubled man from Yemen whom the Department of Defense itself had years earlier recommended for release — established a “presumption of regularity” in consideration of evidence submitted by the government. This standard, in the view of a dissenting judge, “comes perilously close to suggesting that whatever the government says must be treated as true.”
Latif’s attorneys filed for the Supreme Court to reconsider his case and the broader mess that habeas had become. In June 2012 the court declined. By September, Latif was dead, presumably by suicide. His attorneys attributed his death to his despair over never leaving Guantánamo. Latif’s body, to extend Willett’s metaphor, hangs next to the Boumediene trophy.
Meanwhile, the Obama administration promoted a second path for release from the prison, the Guantánamo Review Task Force. Comprising the military, law enforcement, and intelligence agencies, the Task Force has designated more than 100 detainees as “cleared for transfer” after cautious review of each case. But this is a security classification, not a legal judgment, equally powerless as habeas to ensure one’s actual freedom. The release in fits and starts of 123 men under Obama has in each instance been a political decision, entangled in geo-political calculation, transfer diplomacy, partisan combat, and struggles over the separation of powers. Fifty-four men cleared for transfer remain at the prison. It is a strange form of tyranny when the tyrant continues to hold prisoners whom it declares it wants to free.
None of this history is decipherable in “Habeas Corpus,” with profound implications for the piece. The exhibit creates a false picture by suggesting that Judge Leon freed el Gharani. A work of art is not a law lecture, and too heavy a pedagogic burden crushes art’s spirit. One may, moreover, present a moral truth while scrambling the facts. But much of the devil of Guantánamo has always been in the details. The checkered journey of habeas here matters. Bringing it to mind in the vast hall, I began again to see its beauty as deceptive.
But inspecting the el Gharani corpus in detail, I experienced a final reversal of feeling and judgment. His projected body appears less substantial the closer one gets to it. It rests awkwardly on its three-dimensional chair. The limbs flatten and grow out of proportion, verging on grotesque. We see only a distorted spectral image of el Gharani, not the man himself.
The body is withheld even as it is shown. This double move — in an exhibit in warring dialogue with itself — captures the fraught status of habeas corpus as a matter of law for the detainees. Fast-moving text projected opposite El Gharani enhances the exhibit’s self-questioning. We see disjointed bits of his testimony traveling from left to right, which one therefore reads backwards: “between it’s … the”; “you, Americas the”; “America North know”; “a after are we where”; “it months couple”; “for difficult was”; “days first the.” Even spun forwards, the fragments barely cohere.
I took this confusion as a sign both of the trauma el Gharani suffered, as well as the shattered syntax of the law at Guantánamo. It has not, and cannot, be made whole. “Habeas Corpus” becomes its own dream house, containing dream and nightmare both, the transcendent promise of the law fulfilled and the cruelty of a mirage.
Casting ourselves out of this netherworld into fading sunlight, we wound our way back downtown to sit at beaten wooden tables, amidst fraying political posters, to imagine what it would mean to really see el Gharani.