The war on terrorism as a state of exception

Although the paradigms guiding President Clinton's policy shifted to recognise the growing capacity of terrorist groups to act without state support, it was still normal at that time to regard counter-terrorism as an area that involved action falling short of war.Footnote ¹¹ Of course, the Clinton administration did use military force in its response to Al-Qaeda, which, contrary to certain claims made after 9/11, demonstrates that it was not hamstrung by a law enforcement paradigm.Footnote ¹² But even this action was seen as part of a policy that would ‘counter’ terrorism rather than wage ‘war’ on it. An understanding of how the US treated terrorists in its custody prior to 9/11 illustrates the difference. For instance, Ramzi Yousef received all the rights due a person accused of a common crime when he was prosecuted for the 1993 attack on the World Trade Center, as did those members of Al-Qaeda convicted of the attacks on US embassies in Tanzania and Kenya.Footnote ¹³ The magnitude of the 9/11 violence, however, was such that it was seen by the Bush administration as an act of ‘war’.Footnote ¹⁴ The attacks, in other words, had demonstrated that terrorist violence had reached such a level of severity that the crime paradigm and its attendant norms were no longer beyond challenge. They had (to use Gross's description of the moment of exception) ‘pulled the rug out from under the feet of ordinary norms’ and they thereby created the conditions for thinking beyond the normal paradigm.Footnote ¹⁵

President Bush coined the phrase ‘war on terror’ when he addressed a joint session of Congress on 20 September 2001. Yet it is Congressional Joint Resolution 23, passed a week earlier, which has come to be regarded as the moment of decision when the sovereign (that is the representative body of the US people) formally put the US on a war footing. This authorised the President to use

This by itself would not constitute a state of exception either in comparison to the previous administration, as noted President Clinton used military force to respond to Al-Qaeda attacks, or in relation to Schmitt's understanding of the term, which implies some sort of seizure of power by the executive. Yet it is how the Bush administration interpreted that Resolution, and what it claimed the Commander-in-Chief could do as ‘a wartime President’, that can be understood as exceptional. This was exceptional not merely because the administration asserted powers that were in effect unlimited, but also because, as the documentary evidence now shows, the President claimed to be acting legally while abandoning all normal restraint. The post 9/11 situation was not, to repeat Agamben's formulation, chaos or anarchy. Rather it was a state where US actions would have ‘the force of the law without the law’.Footnote ¹⁷

The question of how individuals suspected of terrorist acts or terrorist affiliations were treated in US custody again helps to illustrate the point and there are two key decisions worth noting. The first decision, which was to hold Al-Qaeda operatives to account before a military tribunal applying the laws of war as opposed to a federal court applying criminal law, was taken by the President on 13 November 2001. Having determined that an emergency existed, the President's military order of that day stated the following:

This responded to the concern that terrorists were able to exploit liberal rules such as those on the admissibility of evidence. For instance, where civilian courts in the US would not necessarily act on all intelligence material (nor could they necessarily be trusted to keep it secret) such evidence would be admissible and secure before a military tribunal.Footnote ¹⁹ Of course, securing such intelligence through the use of aggressive interrogation techniques would have been ruled out by the laws of war; the same law that the US was proposing to use to convict Al-Qaeda operatives. However, a second decision was taken by the President on 7 February 2002 that would remove this seeming inconsistency by taking exception to those aspects of the laws of war that regulated the treatment of detainees. Here the President was direct in declaring the need to adopt a ‘new paradigm’ for the war on terror, one that did not include the normal restraints of the Geneva Conventions. ‘By its terms’, he wrote:

Although this legal interpretation of the Geneva Conventions and the political wisdom of questioning them had been challenged by the State Department, the executive branch faithfully implemented the President's decision in its detention facilities at Guantánamo Bay.Footnote ²¹

It is worth pausing here to explain what exactly is exceptional about this statement because it could be argued that it was normal for the Geneva Conventions not to apply to counter-terrorism operations. This was indeed the case but only because terrorism prior to 9/11 was interpreted as a crime rather than an act of war. As noted above the Bush administration rejected this interpretation so one would expect the Geneva Conventions to apply. Yet even if one accepts the war paradigm, one might still argue that the Bush administration's interpretation of its obligations under the Geneva Conventions was not exceptional. That is, one might still argue that the administration was within its rights to prosecute detainees in the war on terror for unlawful combatancy because it was the norm to deny non-state actors the right to wage war. Indeed, to justify its position the administration cited (see the first two sentences of the quote directly above) the widespread assumption that states have an exclusive right to organised violence and only their armed forces could therefore claim the privileges that are due lawful combatants. This norm is articulated in Article 4 of the third Geneva Convention, which the administration also cited to argue that neither Al-Qaeda nor the Taliban could claim to be lawful combatants. To claim the privileges of POW status, which of course includes immunity from prosecution as well as protections against mistreatment, Article 4 proclaims that non-state combatants had to fulfil the following conditions:

It is easy see how these conditions promote respect for the principle of discrimination, which is of course at the centre of the laws of war. Combatants could not be allowed to jeopardise the protected status of civilians by failing to distinguish themselves as military personnel. The point here, however, is that once the war paradigm was accepted, the US did not need to declare an exception to the Geneva Conventions in order to punish terrorists for waging war unlawfully. Neither Al-Qaeda nor the Taliban (although it was more uncertain in the latter case) met the Article 4 criteria.Footnote ²³ It is plausible, then, that members of both organisations could have been prosecuted as unlawful combatants without the need to declare an exception to the laws of war.Footnote ²⁴

The Geneva Conventions do require, however, that the controlling state determine the status of a detainee (that is, prisoner of war, unlawful combatant or civilian) by setting up a ‘competent tribunal’. In this respect, the administration's intention of maintaining a detention policy based on the sole discretion of the President was an exception to the rule. Moreover, the third Geneva Convention prevents the controlling state from mistreating the detainee regardless of his or her status in the conflict. In other words, if a detainee cannot claim prisoner of war status they do not fall into a legal black hole, rather they are classified as civilians to be protected under the fourth Geneva Convention. A properly constituted military tribunal may prosecute them for waging war unlawfully, but they cannot, under any circumstance, be mistreated. We now know of course that the Bush administration took exception to this also. As White House Council and later Attorney General Alberto Gonzalez put it, America's new war,

One can conclude therefore that the Bush administration's response to the 9/11 attacks took the form of a Schmittian exception. The legitimacy of that policy rests in part on the assumption that the norm still governs the exception. In other words, the argument that US forces are not restrained by the laws of war might be legitimised by an understanding that this state of exception is transient and that it will no longer exist once Al-Qaeda is defeated. A closer examination of the arguments used to justify the American exception, however, reveals a scenario that is potentially much more alarming.

War and warfare ‘beyond the line.’

The arguments used to justify the Bush administration's policy were based on assumptions about space and sovereignty in ways that suggest the American exception is not necessarily transient. In other words, the norms governing US warfare might not be restored because the arguments used to establish the exception were not specific to Al-Qaeda and the Taliban; they are therefore presumably transferable to other situations. For instance, the individuals affiliated with Al-Qaeda and the Taliban were classified unlawful combatants not only because they were implicated in the 9/11 attacks but because they were fighting on behalf of non-state (and therefore non-sovereign) actors. It was their status as non-sovereign actors, the Department of Justice (DoJ) argued, that created the legal space for the sovereign actor to use aggressive interrogation techniques. Presumably, this same logic could apply should the US declare ‘war’ on other non-state actors or on militias in other failed states. That of course is hypothetical. The fact however that the administration's arguments were effectively the same as those associated with warfare in a pre-global international society suggests that they are not tied to a particular concern with Al-Qaeda. Indeed the rules of the pre-global international society drew clear lines between the civilised society of states and the non-state savage ‘other’. These rules gave individuals fighting on behalf of states the exclusive right to engage in organised violence and criminalised the violence of non-sovereign communities beyond the line. Furthermore, because the non-state communities resisting the expansion of international society were seen to be irrational and uncivilised, they were denied the rights and courtesies extended to justus hosti within international society. In this respect, the Bush administration did not adopt, despite its claim, a ‘new’ paradigm. Rather it recalled a time when states could fight wars against non-state actors and deny those actors the rights that are due lawful belligerents. It recalled in other words, the idea of frontier warfare or, as Schmitt would put it, warfare ‘beyond the line’. The point here is that because this argument is historically familiar it is not unique to the war on terror; and because it is not unique to the war on terror, it is presumably applicable to future scenarios.

The evidence for this argument can be found in the conclusions of those lawyers at the DoJ who had been given the task of justifying the state of exception. They argued that the Third Geneva Convention, which would otherwise regulate US treatment of wartime detainees, did not apply to the war on terrorism because Al-Qaeda was ‘merely a violent political movement or organisation and not a nation-state.’Footnote ²⁶ By identifying detainees according to their affiliation with Al-Qaeda this argument denied individuals the human rights protections they could claim as citizens of states; states that in most cases were not at war with the US. Furthermore, by arguing that the laws of war only protected those fighting on behalf of states, this argument denied individuals the rights they could expect as citizens of international society. Thus:

Following this logic one might have expected a different conclusion with regard to detainees designated as Taliban. Lawyers outside the administration, for instance argued that Taliban soldiers automatically qualified as privileged combatants and therefore POWs because the Taliban was the de facto authority in control of Afghanistan, which was a State Party to the Geneva Conventions.Footnote ²⁸ Anticipating this argument, however, DoJ lawyers argued that Afghanistan was in fact a ‘failed state’, whose territory had been largely overrun and held by violent militia or faction. ‘Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions, and the Taliban militia like Al-Qaeda, is therefore not entitled to the protections of the Geneva Conventions.’Footnote ²⁹

Despite this claim, certain commentators still argued that the starting assumption should have been that Taliban fighters were entitled to POW status by virtue of their likely compliance with the Article 4 conditions listed above. For instance, it was argued that the black turbans of the Taliban might have been enough of a distinguishing feature for them to qualify as lawful combatants.Footnote ³⁰ The DoJ noted, however, that they had already been informed by the DoD that ‘the Taliban militia failed to confirm its acceptance of the Geneva Conventions, did not fulfil its obligations, and did not act consistently with the most fundamental obligations of the laws of war, such as the prohibition on using civilians to shield military forces.’ It also advised them ‘that the Taliban militia's command structure probably did not meet the first of these [Article 4] requirements; that the evidence strongly indicates that the requirement of a distinctive uniform was not met; and that the requirement of conducting operations in accordance with the law and customs of armed conflict was not met.’Footnote ³¹

The fact that the administration dismissed the possibility that the Taliban could be lawful combatants and the fact that the detainee's status was not determined by a competent tribunal is a central aspect of the American exception claimed by the Bush administration. The key point here however, is that Al-Qaeda's status as a de-territorialised transnational actor and the Taliban's status as a militia fighting in a ‘failed state’ were discursive instruments used by the DoJ to establish the exception. These instruments were used to claim that the detainees were unlawful combatants to be prosecuted by military commissions and that they were individuals who fell outside of an international society that extended human rights protections to all individuals in times of war. This argument was exceptional because the legal regime immediately prior to 9/11 (for example, the Geneva Conventions) did extend human rights protections to all individuals regardless of their affiliations and regardless of the context of their armed conflict. Yet this argument was not entirely new because it recalled an approach to warfare that existed at a time when international society was not global, a time when ‘two patterns of order’ existed alongside each other.Footnote ³² During this time, there existed an international society based on the sovereign equality of European states. In their relations with each other, these states observed a set of norms that promoted the shared ethic of coexistence. Yet the European relationship with communities that lacked the attributes of sovereign statehood was guided by the ‘doctrine of discovery’ and a principle of ‘civilisation’. This not only allowed Europeans to lay claim to lands they considered to be either vacant or at least under-utilised, it also allowed them to crush resistance without any regard for the rights of the individuals in ‘uncivilised’ communities. Unlike the principle of equality that characterised the anarchical society of jus publicum Europaeum, relations between Europeans and non-Europeans were determined by the hierarchical quality of the civilised / uncivilised distinction and this inevitably influenced the conduct of war.Footnote ³³

Schmitt's classic The Nomos of the Earth is profoundly relevant here not merely because it discusses the evolution of this dual order but also because he gives an explanation of why this order continues to exist despite the rationalist's claim that international society is now global and fully inclusive. Schmitt argues that lines drawn by the Papal authorities in the age of discovery first distinguished the two orders. At these lines:

Indeed, the first two-thirds of The Nomos retells the rationalist's story of how Europeans after the Peace of Westphalia gradually abandoned the idea that objective standards were available to resolve justa causa disputes among sovereigns. States instead recognised each other as justus hosti and accepted their armed forces as lawful combatants. This is Schmitt's idea of the ‘bracketed’ war and it fits with the rationalist view that in the European society of states jus in bello (as opposed to justa causa) became ‘the more powerful normative test’.Footnote ³⁵ Schmitt celebrates this European achievement because he sees how in wars where one side claims to have a just cause thoughts of restraint are all too easily abandoned. This situation, he notes, existed in European relations with each other prior to the Westphalian Treaty and it continued to characterise European relations with those non-sovereign communities of the ‘New World’. European sovereigns may have abandoned the concept of justa causa among themselves but this internal achievement simply strengthened the perception that Europe was the centre of civilisation and that it therefore held the right to colonise and civilise the New World. Resistance to such moves was seen as further proof of the irrational and uncivilised nature of those living beyond line. In these frontier wars just cause was the only normative test and a willingness to observe the restraints associated with European warfare was a matter of political rather than legal or moral calculation. War beyond the line, in other words, existed in a permanent state of exception.Footnote ³⁶

It is Schmitt's concept of the political, that is, the irreducibility of the friend- enemy distinction, which leads him to reject the idea that the globalisation of international society can replace this kind of linear thinking and frontier warfare. The restraint that European sovereigns once exercised in the ‘bracketed’ wars between themselves is a characteristic of the society of states that fails to take root outside of Europe. Instead of a new global version of jus publicum Europaeum, Schmitt sees in the twentieth century the emergence of a new nomos (or order) that replicates the hierarchical dualities of previous epochs. In this epoch, however, the centre of civilisation is not Europe but a Western Hemisphere dominated by the US. This new order first emerged in 1823, with the Monroe Doctrine; it asserted itself in 1884 with the recognition of the Congo Free State and later in 1919 with the creation of the League of Nations; and it was finally consolidated after World War II when the Europeans had no choice but to accept America's superpower status. The new nomos had the US at its centre, but outside of that liberal zone of peace, the sovereignty of states was conditional. Where ‘civilisation’ had once conditioned non-European claims to sovereignty, so now ‘liberalism’ conditioned how the US responded to non-American claims to sovereignty; and just as ‘civilisation’ created pressures to abandon restraint in frontier warfare, so now ‘liberalism’ would become America's justa causa forcing it to adopt the practices of total war.Footnote ³⁷

According to Schmitt, therefore, American power reversed two things: firstly, it reversed a hierarchic order so that Europe was now considered a space of unenlightened practice or ‘over-civilized’ corruption;Footnote ³⁸ and secondly it reversed the normative thinking on war so that now just cause was the more powerful normative test and that invariably lay with the US. From this perspective, American liberalism changed World War I from an expression of the power balance between justus hosti and turned it into a just war with the purpose of ending all wars by criminalising and punishing the aggressor. War was no longer the sovereign right of a state, rather wars fought by non-liberal states were unlawful acts and their perpetrators, like the barbarians of old, were to be either punished or annihilated. First the Kaiser and then the Nazi leadership were treated not as sovereigns pursuing their right to wage war, but as aggressors that needed to be punished for waging ‘aggressive war’ or ‘crimes against peace’.Footnote ³⁹

What made this development particularly disturbing for Schmitt (aside from the fact that he too had to answer to the international tribunal at Nuremberg)Footnote ⁴⁰ was that the return of just war had not only stripped government leaders and combatants of immunity from prosecution it had also stripped enemy populations of immunity from being targeted. The problem with fighting just wars is that they forbid compromise with an immoral enemy and they demand the kind of unconditional surrender that indicates absolute victory. The consequence of this way of war, which Schmitt associated with American liberalism, was that the restraints cultivated within jus publicum Europaeum were now confined to history. What made this intolerable was the fact that the modern industrialised state had not only become the potential ‘destroyer of worlds’, it had also become the actual destroyer of cities like Dresden, Hiroshima and Nagasaki.Footnote ⁴¹

Separating liberal internationalism from neo-conservative nationalism

The point here is not that the US is about to use nuclear weapons in its war on terror. Rather the point is that the Bush administration's willingness to abandon the limits set by the Geneva Conventions stems, at least from the Schmittian perspective, from the logic of liberal internationalism. The 9/11 attacks quite obviously signalled that the terrorist threat was real and that by defending the American people against further attacks the US cause was just. Yet the Geneva Conventions had sought to place limits on all forms of warfare regardless of the severity of the threat or of the claim to justa causa. In this respect, the Geneva Conventions gave positive expression on a global scale to the possibility that Schmitt had identified in jus publicum Europaeum, which is that warfare could be restrained if sovereigns accepted that others had a right to conduct war.Footnote ⁴² Where Schmitt's thesis is seemingly proven right is that those kinds of restraints did not survive the onslaught of an American superpower that was supremely confident that its defence of liberalism was a just cause. In the post-9/11 reassessment of the laws of war, America's enemies were denied the human rights that should have been due all individuals as citizens of international society regardless of their status as unlawful enemy combatants or as common criminals accused of committing terrorist acts. In order to justify this new normative hierarchy, the Bush administration acted as Schmitt would have expected. It drew new lines separating the civilised state from the uncivilised non-state actor; the civilised zone of liberal peace from the uncivilised zone of exception (for example, the failed state).

When the arguments of the Bush administration are examined through a Schmittian lens, therefore, it is possible to reach the rather alarming conclusion that the state of exception has less to do with the intensity of the Al-Qaeda threat and everything to do with the nature of American power. The Bush administration's arguments were based on the non-sovereign characteristics of the transnational actor and the militia in the failed state. In that respect, it used an argument that was not specific to the post-9/11 emergency and because that argument was relevant long before 9/11 there is nothing to say it will be insignificant once Al-Qaeda disappears. The permanent state of exception in this sense stems not from an understanding that the US will always be at war with terrorism because terrorism as a tactic will always be used by political enemies. Rather it stems from an understanding that the US will always draw lines that separate the civilised ‘self’ from the uncivilised ‘other’.

Yet if Schmitt's analysis can help us understand certain aspects of the US response to 9/11, the argument that the abuses committed in the war on terror are intrinsic to American liberal internationalism is far too simplistic. Schmitt's distinction between jus publicum Europaeum and the New World is useful to recall. Yet several commentators argue that Schmitt too often allowed an unreflective nostalgia to distort his analysis of both jus publicum Europeaum and pax Americana.Footnote ⁴³ William Scheuerman for instance acknowledges that Schmitt ‘offers an occasionally powerful portrayal of a pre-liberal system of international law’ and he accepts that moves towards humanising warfare did occur in Westphalian Europe.Footnote ⁴⁴ Ultimately, however, Scheuerman concludes that Schmitt is guilty of ‘historical mythmaking’ because there was no golden age of restraint, even among the sovereigns of seventeenth and eighteenth century Europe. ‘A closer look at the jus publicum Europaeum’ Scheuerman writes:

Likewise, Martti Koskenniemi claims Schmitt is guilty of juxtaposing ‘a virtuous past in which legal rules channelled and limited intra-European warfare with a present period of hypocrisy and danger in which nothing stands in the way of single superpower.’ Schmitt's view, he adds, is ‘not based on concrete analysis of European societies from 1500 to 1900, and even less on the reality of European warfare during that time.’Footnote ⁴⁶ Rather, Schmitt's history is written merely to validate ‘a political theology conceived in support of domestic absolutism’.Footnote ⁴⁷

This conclusion naturally leads Schmitt's critics to question the related claim, that it was America's ‘deadly brand of messianic universalism’ that ended Europe's relatively benign order. Schmitt's argument, they point out, rests on a rather dubious periodisation, one which claims that the bracketed nature of European warfare was broken by the internationalist role that the US adopted after World War I. This is described by Scheuerman as Schmitt's most ‘idiosyncratic’ point because it clearly goes against the historical consensus. This consensus, Scheuerman argues, suggests that ‘the key features of the European state system were in shambles long before the appearance of the US as a major player in global politics.’Footnote ⁴⁸ In fact, Scheuerman concludes that the weight of historical opinion favours arguments that are directly opposed to Schmitt's thesis. Europe's troubles were the consequence of nationalism and militarism rather than American liberal internationalism. It is, Scheuerman concludes:

This fact is so inconvenient to Schmitt's thesis that he basically ignored it. For others like Scheuerman, however, the historical consensus suggests that it was the European nation-state rather than the American liberal state that contributed to the rise and perpetuation of total war.

So where does this leave the hypothesis that the American excesses in the war on terror can be explained by Schmitt's critique of liberal internationalism, which we now know rests on a dubious interpretation of history? The implication of Scheuerman's critique of Schmitt is that it is not liberalism per se that is the problem, rather it is an ‘uneasy synthesis’ that exists between liberal universalism and national particularism. Because the former separates the individual from the state, it is unable to countenance the idea of targeting enemy populations or abusing enemy prisoners even if it can lay claim to justa causa. It is not until liberalism is mixed with the ‘highly particularistic and exclusionary ideas of national identity’ that the armed forces, and indeed the population, of the non-liberal actor become labelled as ‘others’.Footnote ⁵⁰ In other words, Schmitt's argument that liberalism leads to disproportionate violence only becomes relevant when liberalism is hijacked by nationalistic projects that find vindication in being the advanced guard of a universal ideal. Theoretically, that synthesis is not inevitable and while in practice the contemporary state of American society makes it difficult to undo such a synthesis the following analysis shows that it is possible.

The reason the Bush administration's response to 9/11 fits so squarely with Schmittian thinking is that it was guided by a neo-conservative project that at once rejected and embraced liberal universalism. On the one hand, neo-conservatives adopt a Schmittian-type critique of liberal multilateralism, which maintains that the idea of a global international society is superficial because it lacks the ‘concrete’ bonds that inspire action. This kind of ‘soft’ Wilsonianism is not only superficial it is naïve because it plays directly into the hands of America's (and for that matter liberalism's) enemies; enemies who happen to understand politics in the Schmittian sense and are therefore able to exploit liberal naiveté by turning international law and organisation against the US.Footnote ⁵¹ Yet on the other hand, the neo-conservative project embraces liberal universalism as a forward-looking cause that can help restore the sense of national purpose that Americans had at their founding but have since lost because of the excesses of selfish individualism at home.Footnote ⁵² This kind of ‘hard’ Wilsonianism embraces the Schmittian concept of the political and is thus unconcerned by the accusations of ideological inconsistency. A line is drawn between America's friends and its enemies, and because the nationalist ideology tells Americans they are fighting for freedom, a victory for America and its friends, even one that involves abusing the enemy's human rights, is considered a victory for liberalism.

It is this synthesis between liberal universalism and American nationalism that encouraged the Bush administration to identify zones of exception. This in turn enabled US officials to engage in practices of aggressive interrogation and to argue that they were not in contravention of America's legal or moral obligations because those obligations did not apply in the ‘new kind of war’. Yet as the above criticism of the Schmittian thesis implies, this is not an inevitable consequence of American liberalism. It is in fact, as Koskenniemi puts it, ‘the logic of (American) nationalism: the unquestioned authority of my (liberal democratic) country as the sole normative standard.’Footnote ⁵³ An analysis of the US Supreme Court's intervention in this area, moreover, should offer liberals some hope that the values they hold to be universal will be observed despite the state of exception declared by the Bush administration.

In the 2004 Rasul and Hamdi rulings for instance, the Court challenged a central aspect of the American exception, which is that individuals affiliated to Al-Qaeda were automatically to be treated as enemy combatants and could either be held indefinitely for the duration of the war or tried by a military commission for waging war unlawfully.Footnote ⁵⁴ The Court in fact noted that certain detainees were wrongly classified as enemy combatants because they were either US citizens (for example, Hamdi) or they were citizens of states that were US allies, (those represented in Rasul were citizens of the UK, Australia and Kuwait). Here one might interpret the Court's judgement as an attempt to reassert the norm of a liberal world order, which is that the legal institution we call ‘war’ can only be waged between states or state-like entities. Moreover, if individuals were being held because of their part in a transnational terrorist conspiracy, these rulings implied that they had to be treated as criminal suspects who had the civilian's constitutional right to appeal their detention before an impartial judge. At the very least, the Court ‘rejected the government's assertion that the President's say-so was a sufficient basis for treating such citizens as “unlawful enemy combatants”.’Footnote ⁵⁵

The 2006 Hamdan ruling also challenged the Bush administration's claims when it denied that a state of emergency existed. It insisted that the President could not claim the power to simply interpret laws, including the Geneva Conventions, out of existence. Consequently, it ruled that the administration's military commissions were illegal because they had not received statutory authorisation.Footnote ⁵⁶ The Court also rejected the argument that the Geneva Conventions did not apply to the war on terror because it was not a conventional inter-state war. As Justice Stevens stated, ‘there is at least one provision in the Geneva Conventions that applies here even if the relevant conflict is not one between signatories.’Footnote ⁵⁷ This provision was Article 3 common to all four Geneva Conventions. It provides that in a ‘conflict not of an international character, occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply’ certain minimum provisions. These include the humane treatment of detainees and a prohibition on ‘the passing of sentences […] without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’Footnote ⁵⁸ This last provision made the military commissions illegal.

Read together these judgements can be interpreted as an attempt to end the state of exception that the Bush administration had tried to manufacture. The detainees were either terrorist suspects with civil rights or they were enemy combatants protected under the Geneva Conventions. From the Court's perspective, the structure of the law that existed prior to 9/11 continued to apply despite the Bush administration's claims. In response to these judgements, however, the political branches sought to maintain the state of exception, at least prior to the 2008 elections. For instance, while the administration responded to Rasul by creating Combatant Status Review Tribunals, Congress passed the Detainee Treatment Act, which ruled that ‘no court, justice or judge shall have jurisdiction to hear or consider a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba.’Footnote ⁵⁹ Following the Hamdan decision, moreover, Congress passed the Military Commissions Act. This act restored the plan to use military commissions in counter-terrorism operations by putting them on a legislative footing (as noted above the Court rejected them because they had been set up by executive order). It also limited habeas relief for alien detainees and ruled that those awaiting trial by military commission could not invoke the Geneva Conventions as a source of rights.Footnote ⁶⁰ Even with the election of a new President, there are no guarantees that the exception declared under Bush will not become the new norm and the world awaits the outcome of the new administration's policy review.Footnote ⁶¹ The conclusion to draw in the meantime is that liberals can take some encouragement from the Supreme Court's rejection of the Bush administration's exception, as well as from the opposition offered in certain sections of Congress.Footnote ⁶²