THE GREATEST PROBLEMS DOGGING THE US and Israeli legal establishments lie in the vast areas of exception that have been created to combat what are ostensibly deemed “threats to the state”. The towering reminder of this problem within the US context remains Guantanamo Bay, that great sore of exceptionality. The camp provided a site of normalising the regime of torture and detention.

The system saw the creation of juridical absurdities – in so far as you consider military commissions, and their accompanying problems absurd. Many legal commentators believed so, concurring that this was overegging the pudding.  Why go this extra step if there is already a pre-existing and adequate legal system to try such suspects? Various convictions of terrorist suspects between 2001 and 2011 should have been proof enough.

However the Bush administration wanted to set an example, a dangerous one as it would turn out, for such detainees. Their counsel teams were to be harried; the defence team conversations were to be monitored; and illegally obtained evidence – including some supposedly adduced by torture – used.

The greatest harm has been directed at the detainees themselves.  Earlier this year, aspects of what is euphemistically termed “enhanced interrogation” once again made their nasty appearance in the news stream.

According to Majid Khan, a legal US resident detained in Guantanamo Bay, interrogators poured ice water on his genitals, videotaped him naked and repeatedly groped him.  At times he was also hung from a metal pole and suspended for several days. Lights were kept on his cell and various types of music blasted around the clock. All this was in addition to incidents of rectal feeding or rehydration, as deemed necessary by Guantanamo officials after Khan had gone on hunger strike.  Of course, there was that pièce de resistance: water boarding.

These specific allegations did not even make it to the official Senate report which was released last December.  (The CIA has been making an effort to ensure that the memory of a detainee, traumatised as it might be, remains classified.) It says much about the atmosphere in US politics that a report which combed through 6.3 million internal CIA documents, revealing instances of systematic detainee abuse, could be dismissed by members of the Republican Party as a record of embellishment.

This was not to say that Khan was pure as driven snow.  He did confess to delivering $50,000 to al-Qaeda affiliates in Indonesia, money that was used to fund the 2003 truck bombing of a Marriot hotel in Jakarta. He also confessed to associating with the notorious Khalid Sheikh Mohammed on the matter of poisoning water supplies, attacking gas stations and acting a “sleeper agent” on US soil (Reuters, Jun 2).

Despite all that, nothing can get away from the fact that Khan has been a victim of CIA “black site” interrogations, along with the promise that he would be sent “to a place you cannot imagine”.

As a presidential candidate, Barack Obama promised to make the closure of Guantanamo a key policy priority. On 22 January, 2009, the President signed an order requiring the closure of the detention facility, claiming that the US would no longer be faced with “a false choice between its security and its ideals.” This has yet to eventuate.

Congress baulked at the suggestion, and limited avenues for relocating terrorist suspects into the federal civilian system through the usual means: cutting off the purse strings. Obama subsequently opened negotiations with other countries to ship off as many detainees as he could, though releases have dried up under the current Secretary for Defence. In 2003, there were 684 detainees. By July this year, the number had fallen to 116, with 99 of those held after some ten years still waiting for specific charges to be brought. This is affirmed legal purgatory.

The Obama administration sporadically puts the issue of closure on the cards, assuming that anyone, at this point in time, will genuinely believe that the complex could vanish. It did so again this year. But these are withdrawal systems, patterns repeated that confirm the general sense that this Kafkaesque incarceration complex is here to stay.

This attitude is best reflected by Republican Senator Tom Cotton from Arkansas. “In my opinion, the only problem with Guantanamo Bay is there are too many empty beds and cells there right now.  As far as I’m concerned every last one of them can rot in Hell, but as long as they don’t do that, they can rot in Guantanamo Bay” (The Independent, Jul 23).

The implications for closing down such a camp system, with its unjustified extra-legal padding (review tribunals, administrative review tribunals and periodic review tribunals), will certainly make countries similarly engaged in the business of fighting terrorism in various ways take notice.

There are concerns, for instance, that closing Guantanamo will affect the Israeli system of detention system in the West Bank (Jerusalem Post, Dec 27). Civil rights lawyers will certainly be hoping that this is the case, though their wait will be a long one.  Such realms of exception tend to eventually eviscerate the entire legal system even as they mocks the mission of messianic states.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: