Due Process and Lethal Confinement

doi:10.1017/CBO9780511581069.005

5 - Due Process and Lethal Confinement

Published online by Cambridge University Press: 11 September 2009

Colin Dayan

Edited by

Austin Sarat and

Jennifer L. Culbert

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Austin Sarat: Affiliation:
Amherst College, Massachusetts
Jennifer L. Culbert: Affiliation:
The Johns Hopkins University

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Summary

Even when it comes to “being a guerilla,” a label alone does not render a person susceptible to execution or other criminal punishment.

– Justice Anthony Stevens, in response to Justice Clarence Thomas's dissent in Hamdan v. Rumsfeld

How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them!

– Chief Justice Earl Warren, Trop v. Dulles

New World Security

As the White House of George W. Bush continues to incarcerate the innocent in Guantánamo Bay, to rewrite international law, and to use techniques that are cruel, inhuman, and degrading, we read complaints about an administration outside the law, secret CIA sites that are lawless, and “war prisons” that create a legal vacuum for more than 30,000 detainees in U.S. military prisons in Iraq, Afghanistan, and Guantánamo Bay. Being outside legality might not be the point, however. Before the “global war on terror” and the export of local prison practice to a network of overseas prisons, numerous U.S. Supreme Court decisions in dialogue with prison correctional policy had already retooled the incidence of civil death for the incarcerated. Not only has this limited the reach of Eighth Amendment jurisprudence but also it has redefined the substance of the due process clause.

To the extent that the probable cause and due process protections of the Constitution are ignored and abolished in the wake of the war on terror, the directive achieving such ends is illegal by any post–Magna Carta standard.

Type: Chapter
Information: States of Violence
War, Capital Punishment, and Letting Die
, pp. 127 - 149

DOI: https://doi.org/10.1017/CBO9780511581069.005 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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