Detainees

Technically, a detainee can be any individual held by an armed force; detainees along with the wounded and the sick are the three vulnerable populations to which the International Committee of the Red Cross has traditionally directed its services. The term detainee as it is used in public discourse today, however, usually refers to individuals held as suspected terrorists. The legal status of such suspects has been the subject of intensive debate and legislative action in the United States and Europe since the September 11 attacks, particularly on the questions of what interrogation procedures, some amounting to torture, can be used on detainees and the length of detention without trial.

The U.S. presidential administration of George W. Bush (2001–2009) has received especially intense criticism for its creation of a new class of legally unprotected detainees known as “enemy combatants” and for the unprecedented scale of its use of “extraordinary rendition” to clandestinely transfer detainees from one nation to another. The category “enemy combatant” was created by the Bush administration to argue that suspected terrorists should not be counted in any of the four classes of detainees entitled to protection under the Geneva Convention. As stated in the “Joint Doctrine for Detainee Operations,” a 2005 document produced by the Joint Chiefs of Staff,

“Extraordinary rendition” refers to the process of transferring a detainee from one nation to another without any form of judicial or administrative process. Human rights groups such as Amnesty International and Human Rights Watch have maintained that both actions made the torture of detainees more likely. The Obama administration has removed the term enemy combatant and instituted new measures to prevent torture; however, like the Bush administration, it has maintained the right to hold suspected terrorists indefinitely without charge and to employ extraordinary rendition.

Incidents of detainees being tortured and sometimes killed by U.S. military personnel abroad have been documented at Abu Ghraib prison (Iraq), Bagram Theater Internment Facility (Afghanistan), [Page 295]and Guantánamo Bay Naval Base (Cuba). In some cases, photographs depicting prison abuse, including torture, became publicly available, resulting in high-profile international scandals.

The extreme vulnerability of the least protected detainees has elicited philosophical reflection, perhaps most notably by the Italian critical theorist Giorgio Agamben, who in a 2004 interview with Ulrich Raulff described the situation of enemy combatants as “comparable with those in the Nazi camps. … [T]hey have absolutely no legal status. They are subject now only to raw power; they have no legal existence” (p. 6).