In April, days before the Abu Ghraib story broke, the Supreme Court was hearing Rasul v. Bush, the case of a British citizen captured in Afghanistan and held at the US naval base at Guantanamo Bay, without being charged and without access to legal counsel. There were, it turned out, intimate connections between the Abu Ghraib scandal and the Rasul case: Major General Geoffrey Miller, for example, the architect of Guantanamo, also helped to shape procedures at the various detention and interrogation facilities in Iraq. More generally, Abu Ghraib served as a window, one of the few we have had so far, into the secrets of Guantanamo Bay, a place where the aberrations of Abu Ghraib threaten to become the norm – where the exception, in other words, becomes the rule.

The concept of the state of exception (which is discussed more fully in Malcolm Bull’s review on page 3) was first put forward in the 1920s by the political and legal scholar Carl Schmitt. Having written on dictatorship, Thomas Hobbes, and political Romanticism, Schmitt turned his attention to the newly established liberal democracy of the Weimar Republic. He disliked the regime, and in particular he disliked the constitution, though he did not want to see it abandoned altogether. Instead, he focused on a provision that called for its suspension at moments of emergency – at times of war or national disaster. These emergency provisions, he suggested, should be exploited to create a permanent state of exception, in which the constitution would not be openly violated, but legally suspended.

Schmitt’s suggestion was taken up and a state of exception was declared in Germany with increasing frequency in the late 1920s and early 1930s before it was made permanent by Adolf Hitler. The use and abuse of the state of exception has been a temptation for many democracies in times of crisis: almost all constitutions, including the US constitution, contain emergency provisions such as the one picked out by Schmitt. Indeed, during the Supreme Court hearings of Rasul v. Bush, Theodore Olson, the then solicitor general, said of the ongoing hostilities in Afghanistan that they constituted the conditions for a state of emergency. US soldiers, he argued, were engaged in armed conflict with ‘an undisciplined, unprincipled and savage foe’. It wasn’t clear that such a foe had any rights, but if he did they should be ‘determined by the executive and the military, and not the courts’. In order to remove prisoners captured in the ‘war on terror’ from the reach of the courts, the administration created the new, ill-defined category of ‘enemy combatant’. This label sets detainees apart from the ‘prisoner’, let alone the ‘prisoner of war’, and thus denies them the rights such prisoners possess. ‘Enemy combatant’ inevitably brings to mind the ‘unlawful combatants’ specified by the Geneva Convention: non-uniformed combatants operating outside the context of the traditional battlefield. Seeking to sustain the resemblance, the US administration declared that it would treat these detainees ‘humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949’. The real point of the new coinage, however, is to create a plausible resemblance to the Geneva Convention and thus to make the right to humane treatment not inalienable, but subject to ‘military necessity’. In addition, Olson made it clear that the president alone can decide who is and is not such an ‘enemy combatant’. Schmitt, too, favoured rule by an ‘absolute sovereign’ (whom he got with a vengeance): an executive power unencumbered by other branches of government and human rights conventions, free to make emergency decisions.

One of the most striking aspects of the situation at Guantanamo Bay is the relation established there between law and territory. The administration has tried to make the naval base a territorially-defined state of exception, a zone in which neither Cuban nor American law applies. This has been made possible by an ambiguity in the lease of the naval base, which stipulates that the US has ‘complete jurisdiction and control’, while Cuba retains ‘ultimate sovereignty’. The invocation of ultimate Cuban sovereignty allowed Olson to argue that the protections furnished by the US constitution do not apply to Guantanamo Bay. Even John Gibbons, who argued the case on behalf of Rasul, had to admit that the legal status of Guantanamo is ‘unique’. While other naval bases have had to bring their legal position into line with the laws of the host nation, the US military has exclusive jurisdiction over Guantanamo Bay. Castro’s ‘ultimate sovereignty’, Gibbons argued, did not have any purchase and was therefore ‘metaphysical’: a formula later echoed by Justice Souter.