The USA Patriot Act issued by the US Senate on October 26, 2001, already allowed the attorney general to “take into custody” any alien suspected of activities that endangered “the national security of the United States,” but within seven days the alien had to be either released or charged with the violation of immigration laws or some other criminal offense. What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of pure de facto rule of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.
Giorgio Agamben, State of Exception
The torture-cheerleaders are clear to state that the Bush Administration’s legal counsel cleared the techniques of torture—mainly by stating that these techs were not-torture—so it could be argued that the “detainees” were in fact covered by law, as “detainees”.
The torture regime of a decade ago was indeed a legal regime: by using the law to remove the protections of the law from those assigned “detainee” status, it covered those who would torture.
Hannah Arendt noted there is no particular dignity in the naked human being (although “naked” in this sense meant shorn of one’s membership in a state), which leaves that shorn human vulnerable to imprisonment, displacement, death.
The point, then, is the same: lacking status as a citizen, a prisoner, a person—as someone recognized by us—allows us to do anything to that non-person.
And so we did.