Guantánamo Bay: The Global Effects of Wrongful Detention, Torture & Unchecked Executive Power

New York City Law Review, Summer 2007

10 Pages Posted: 12 Nov 2009

See all articles by Marc D. Falkoff

Marc D. Falkoff

Northern Illinois University - College of Law

Date Written: 2007

Abstract

For academics, Guantánamo is an intellectual feast. Thanks to the administration's decision to detain suspected terrorists in the supposedly lawless void of an offshore prison camp, we have been busy for years debating fundamental issues concerning the extraterritorial reach of the Constitution, [FN1] the office of “the Great Writ,” [FN2] the powers of the executive during wartime, [FN3] and even the definition of “war” itself. [FN4] For those of us who still believe our nation can serve as a beacon of human rights for the world, these scholarly questions are a live and pressing concern, not least because they are susceptible to no easy answers. In forums like this one, we accordingly exercise our solemn duty to wrestle with big ideas, so that we may police our judges and elected officials to assure they maintain their intellectual honesty.

But Guantánamo Bay is more than just a marker for a tangle of competing legal theories. Today, Guantánamo remains home to nearly 400 prisoners, none of whom have been convicted of anything and only ten of whom have even been charged with a crime. [FN5] *394 Most of these men, including more than a dozen of my Yemeni clients, have been held at Guantánamo for more than five years--sleeping on steel beds, cut off entirely from their families, deprived of intellectual stimulation, slowing growing insane. They have been abused, religiously humiliated, and denied absolutely their day in court. Their condition is, in a word, pitiful.

As a practitioner and an academic, I live uneasily with a dual consciousness about Guantánamo. At times I will be absorbed in debates about the scope of the common-law writ of habeas corpus or about what Justice Kennedy's concurrence in United States v. Verdugo-Urquidez [FN6] might mean for the development of Supreme Court doctrine for overseas detention cases. But then I receive a letter from one of my clients or pay a visit to Guantánamo, and I find myself confronted again, in an unmediated way, with the despair and hopelessness to which many of my clients have succumbed.

Suggested Citation

Falkoff, Marc D., Guantánamo Bay: The Global Effects of Wrongful Detention, Torture & Unchecked Executive Power (2007). New York City Law Review, Summer 2007, Available at SSRN: https://ssrn.com/abstract=1502994

Marc D. Falkoff (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

HOME PAGE: http://www.niu.edu/law/about/directory/marc_falkoff.shtml

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