IT IS THE MORNING OF DECEMBER 30, 2006, AND NEWS HAS JUST ARRIVED THAT IN Baghdad Saddam Hussein has been hanged. His execution is a death in custody authorized and carried out by a state as a demonstration of its monopoly on the legitimate use of lethal force within its jurisdiction. In such circumstances, including several U.S. states, capital punishment on behalf of "the people" supersedes a fundamental principle of human rights conventions: the right to life. In the aftermath of September 11, 2001, the U.S. administration and its allies, most ardently the United Kingdom (U.K.) and Australia, have reconstructed the concept of a "just war," redefined the context of "preeminence," and established criteria for imposing regime change on "rogue states" regardless of their sovereignty. Though debates persist over the legality or otherwise of the military offensives against Afghanistan and Iraq and new targets are lined up within what U.S. President George W. Bush has promoted as the "axis of evil," the self-styled "war on terror" potentially has no limits: a war without a named enemy, without boundaries, without legitimacy, without rules of engagement, and without prisoner protection.
As U.S. air strikes reduced Afghanistan's towns and villages to rubble, 900 prisoners were taken near Kunduz and held captive in containers. They died in the fierce heat, without water or air, unprotected by the Geneva Conventions. A U.K. Foreign Affairs Minister regretted that "nasty things happen in war." The U.S. Defense Secretary, Donald Rumsfeld, stated that those taken on the battlefield would not be treated as prisoners of war or "soldiers in action," but as unlawful combatants, later reclassified "enemy combatants. "The "war on terror," he claimed, was not a conventional war because in the military conflict the only legitimate, uniformed soldiers belonged to the U.S. and its allies. Those captured did not wear the uniform of any recognized army and were "indistinguishable from the general population." Arguing that they were "committed terrorists," military detention became the sole criterion of guilt.
Denied prisoner-of-war status, those trawled and selected by the military or security services were interrogated, tortured, and transported without the protection of international law or the Geneva Conventions. Incarcerated outside U.S. sovereign territory, they had no rights under the U.S. Constitution and no access to a jury trial. The process was not a spontaneous response; it had been preplanned. On November 13, 2001, the U.S. had issued a Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. It introduced a new form of stateless detention: indefinite internment without trial, and prosecution without independent legal representation. Three months later, Bush used his presidential authority to establish that "none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world."
The sight of prisoners decanted from U.S. transport planes, some drugged, all clothed in orange boiler-suits, gagged, chained, and ski-masked demonstrated not only the awesome powers of the U.S. military-industrial complex to capture, detain, and torture, but also its disdain...