Friday, June 21, 2013
Hope Metcalf and Judith Resnik (Yale Law School and Yale University - Law School) have posted Gideon at Guantanamo: Democratic and Despotic Detention (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
One measure of Gideon v. Wainwright is that it made the U.S. government‘s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over decades to insist that, unlike totalitarian regimes, the United States has constitutional obligations to equip individuals with third parties — lawyers — to inhibit (if not to prevent) coercion. Both Gideon and Miranda recognize the relationship between the dignity of individuals in their encounter with the state and the legitimacy of state processes. Both decisions locate enforcement authority in courts. Both rely on lawyers, deployed as witnesses to interrogation and as advocates, and both impose obligations that, when necessary, governments subsidize lawyers.
Conflicts in the post-9/11 era over the boundaries of Gideon and Miranda illuminate what is at stake: whether aspirations remain that detention and interrogation of individuals — even the reviled — could possibly merit the adjective democratic to reflect constitutional commitments that all persons are rights-bearers who cannot be left alone and subject to state power closed off from public oversight.