Sunday, October 12, 2008
It's always a great pleasure for me to find an article that puts actual legal practice within a broader theoretical context, that weaves experience and theory in a way that elucidates both. Professor Muneer Ahmad of American University (visiting at Georgetown) has produced just such an article in Resisting Guantanamo: Rights at the Brink of Dehumanization, recently posted on ssrn. This is an interesting, smart, and even surprisingly optimistic paper--a wonderful read. I highly recommend it for anyone, but especially those teaching or taking con law, con theory, or clinic (where the links between theory and practice, thoughtfullly displayed in this piece, are always front and center).
Ahmad draws on his three-year experience representing a teenage Canadian detainee at Guantanamo in exploring issues ranging from rights theory to litigation strategy. He starts with Boumediene v. Bush and argues--quite persuasively, given our most recent experiences with the Uighurs (see my recent posts on this blog)--that the case was important, but not transformative:
What was clear the moment the case was decided, and what has been borne out in the months of litigation in hundreds of cases since, is that Boumediene alone could not close Guantanamo, but could only narrow the space in which it is allowed to operate. Now that the headlines have faded, the rights moment of Boumediene has dissolved into the less visible daily practices of the Guantanamo lawyers, human rights advocates, and other allies, where the assertion of rights is a necessary but inadequate step toward justice for the prisoners. We see now another iteration of what we experienced after Rasul: that the work of rights is important but limited, and that the mere existence of rights is not enough to do justice.
He thus characterizes Boumediene and other cases coming out of Guantanamo not as transformative litigation--the administration has managed to frustrate any transformative effects of these cases--but rather as resistance to dehumanization. Ahmad argues that government practice at Guantanamo leads to three levels of "erasure" of prisoners' humanity: "cultural erasure through the creation of a terrorist narrative"; "legal erasure through formalistic legerdemain"; and "physical erasure through torture." While Boumediene won't transform Guantanamo, it, like Rasul, represents resistance to these forms of erasure, to these forms of dehumanization. Here is the optimism: understanding these cases as resistance to dehumanitization, and not only as transformative, we can appreciate their successes in a new and different light.
Ahmad ties the legal resistance in Boumediene, Rasul, and others to the day-to-day resistance of Guantanamo prisoners (in the form of hunger strikes) and asks what these different, but related, types of resistance say about the nature of rights and about the defense of the detainees' humanity again "extreme instances of state violence." In relating legal strategy to practical strategy to theory--as only one who practiced in the area can--Ahmad is at his strongest and most creative. This link between theory and practice is the highlight of an article full of high points.
I highly recommend this very thoughtful article.