Guantánamo Public Memory Project

The legal framework of marginalizing

“The law operates through practices and principles that purport to be objective, impersonal, and neutral, but are, in fact mired in hidden subjectivities and unexamined claims which often serve to denigrate the experiences of marginalized subjects and populations, experiences that contradict or challenge these unquestioned assumptions.”

A. Naomi Paik, “Testifying to Rightlessness: Haitian Refugees Speaking from Guantanamo”


In the context of the violent military coup in Haiti during the 1990s, I try to imagine the trauma of leaving home on a makeshift boat headed for “anywhere but here”; the trauma of getting intercepted by the INS; the trauma of staying in Guantánamo, surrounded with barbed wire, guns and guards; the trauma of the uncertainty of being repatriated back to a gravely dangerous homeland. With this compelling distress, not to mention the misery of the conditions from which they fled, I wonder how anyone could give a lucid testimony of the experience of fleeing from their home seeking political asylum. Some Haitians managed to do so; however, the real problem was on the receiving end.

The legal context through which the Haitian refugees were screened to determine their legitimate eligibility for political asylum was inherently strict, prohibiting the Haitian refugees from telling their stories in their way. As a result, their testimonies were assessed as collectively “disordered.” (Paik 48.) The yes-or-no framework, for example, excluded important details regarding the significance of a personal story. In addition to that “lost in translation” some translators found that the Haitians have a “rambling and involved way of getting a response to a question … and generally not good with dates and numbers” and frequently communicated with “folkloric sayings.” (Paik 48.) As a result, their claims were generally not seen as legitimate. One INS official claimed, “95 to 97 percent of the [Haitian] people obviously have had no problems and therefore would not be eligible for asylum. The majority of the asylum claims made by Guantanamo refugees were simply fraudulent.” (Hansen 288.) This apparent predisposition against the refugees’ accounts shows the hidden subjectivities through which their experiences were unfairly criticized.

These hidden subjectivities are not only found in the INS officials; these judgments are widespread, hidden and generally accepted. On a recent tour through an immigrant’s home at the Tenement Museum in the Lower East Side of Manhattan, a participant of the tour inquired about the docent’s use of the phrase “undocumented immigrant” (as opposed to generally unquestioned, conventional phrase “illegal immigrant”) to describe the immigrants’ legal statues; he asked, “Why call it undocumented when it’s clearly illegal?” Candid as his question was, it stands as a clear example of a quiet, social stereotype by which marginalized groups are denigrated.

The docent went on to clarify that the immigrants themselves were not illegal; identifying immigrants by their document status, instead of criminalizing them with an illegal modifier, was more appropriate. The moment passed and the tour resumed but I think our terminology is a verbal manifestation of societal values; while the use terms ‘illegal’ may seem innocuous, language sets the framework for how we perceive our surroundings.



Paik, A. Naomi. “Testifying to Rightlessness: Haitian Refugees Speaking from Guantanamo.” Social Text 2010 28(3 104).


Hansen, Jonathan M. Guantanamo: An American History. (New York: Hill and Wang, 2011.)


Posted by Olivia Blakely Caswell – MA Candidate at New York University

2 Comments to: The legal framework of marginalizing

December 11, 2013 12:12 pmDaniel Neff wrote:

Parts of the United States government have had a long history of marginalizing anyone or anything that does not fit the narrow, presented world view they attempt to maintain and frequently use terminology to do so. The U.S. Government spent years trying to undermine any country that dared do anything resembling communism or socialism, all the while ignoring far more dangerous dictators because they weren’t the scripted villain. Such was the case in Haiti. After years of one brutal dictator after another Haiti finally managed to erect a democratic government. When this democracy was overthrown after less than a year the U.S. Did nothing to intervene, because at least they weren’t communists. When people fled in the wake of this military coup the U.S. Only response was to make sure they didn’t come to our shores. How could they restrict political refugees? There are international laws that state political refugees must be accepted. But INS and some people in power insisted that these were not political but “economic refugees”, and there are no laws about what to do with them. So to Guantanamo Bay they went. There they were treated like criminals and given only an incredibly small chance to convince someone, probably biased against them, that they had fled for political reasons, that there lived would be in danger if they returned to Haiti. This continues at Guantanamo Bay today: everyone they can tack the word “terrorist” onto is sent there, found guilty before they were even caught, let alone given a fair trial.


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