Peter Singer, writing for the Guardian, observes that the abuses at Abu Ghraib prison may be destined to swirl down a legal drainhole:
But the problem is that not all those involved were US soldiers. While the military has established structures to investigate, prosecute and punish soldiers who commit crimes, the legal status of contractors in war zones is murky. Soldiers are accountable to the military code of justice wherever they are located, but contractors are civilians - not part of the chain of command. ... Normally, an individual's crimes would then fall under the local nation's laws. But there are no established Iraqi legal institutions - that is why we are running their prisons in the first place - and, in any case, coalition regulations explicitly state that contractors don't fall under them. In turn, because the acts were committed abroad, and also reportedly involve some contractors who are not US citizens, the application of US law is problematic. As one military lawyer said: "There is a dearth of doctrine, procedure, and policy."This leaves a vacuum. Phillip Carter, a former US army officer now at UCLA Law School, notes: "Legally speaking, they [military contractors] fall into the same grey area as the unlawful combatants detained at Guantánamo Bay."
This jibes rather well with what Seymour Hersh had to say on the Newshour last night:
[W]hat you're seeing is the result of a decision made somewhere up high up in the line that we're going to turn our prisons essentially into all of them in the Guantanamos, they're all going to become factories for eliciting intelligence.
So, on the strength of an arbitrary military decision that is not subject to any kind of judicial oversight, people -- even US citizens -- can be detained in a complete legal limbo. The system of privatization is designed to help this process of creating essentially stateless persons. Once people are rendered stateless, anything can be done to them, because no one will speak for them.