Double Take

by Jared A. Goldstein, Distinguished Research Professor of Law at Roger Williams University School of Law and and is a US expert on the applicability of habeas corpus to Guantanamo Bay detainees.
First published in Manual, the magazine of the Museum of Art, Rhode Island School of Design, Fall 2017 issue.

At first glance, Carey Young’s Declared Void seems to suggest that it is arbitrary or even meaningless to distinguish between a space where the Constitution applies and where it does not. Marked off by black tape, the lawless zone looks no different than the area around it. We can freely enter or leave the space at will. Perhaps the protections offered by the Constitution are illusory as well, because we can see that there are no consequences if we enter the lawless zone or stay outside it. Maybe it is just superstitious to believe that a document written hundreds of years ago could somehow protect the rights to free speech, to equal treatment, and to freedom from excessive force in one space but not another.

Another moment’s reflection should remind us otherwise. Recent history provides too many examples of what happens in spaces where law is absent.

Beginning in December 2001, the United States sent hundreds of foreign terrorist suspects to a detention facility in Guantanamo Bay, Cuba. Twelve of them were my clients. Military authorities believed that the U.S. Constitution would not apply there due to Guantanamo’s unique legal status—it is under exclusive U.S. control but technically remains part of Cuba. Secret memos, since declassified, have made it clear that the military chose Guantanamo precisely for this reason. They wanted to create a secret prison outside the law.

In secret prisons there are no rules, no limits on how the prisoners can be treated. Torture becomes routine. In Guantanamo, some prisoners were water- boarded. Others, like my clients, were deprived of sleep for days and forced to stand in stress positions for eighteen hours at a time. With no law to stop them, the military believed that they could keep the prisoners in isolation indefinitely and give them no hearings where they could challenge their imprisonment, no books, no exercise, and no way to contact lawyers or their families, friends, or home governments. To break the prisoners’ spirits, interrogators told them they would die in Guantanamo and no one would know or care.

It took years for U.S. courts to step in and declare that even on a military base in Cuba, the Constitution imposes limits on the treatment of prisoners.

The lawless zone in Declared Void, however, is no prison or torture chamber, but a quiet corner in the safety of a museum. Here, it makes no difference whether we say the Constitution applies or not. But the installation should lead us to contemplate other spaces—Abu Ghraib, Soviet gulags, Auschwitz— where law was absent. Or maybe we should think about places closer to home—the state prison, a road- side where a policeman has pulled over a motorist for a broken taillight, or a public-school classroom where a teacher is about to punish a student. Are there any limits on what the guards can do to the prisoners, what the policeman can do to the driver, what the teacher can do to the student? In those spaces, it can make all the difference whether the Constitution applies.