Dual Disloyalties: Law and Medical Ethics at Guantánamo Bay

At a recent symposium held in Seton Hall Law School and simulcast to hundreds of academic institutions in the United States and abroad, I was asked to address the question: “Guantánamo Bay: How should we respond?” When I thought about this question, it occurred to me that we talk about “responding” in a number of ways. We respond in games, such as chess or bridge. But the detention policy of the Bush Administration (henceforth, the “Administration”) is not a game-certainly not from the perspectives of those who are being (or have been) detained at Guantánamo Bay for prolonged periods since the “global war on terror” began. We also respond in conversation. However, we should not permit rhetoric to distract from action on the ground. Statements of interrogation and detention policy are one thing (especially when prepared for public consumption or in response to public criticism); interrogation and detention practices may be quite another. We respond in negotiation. That model, too, makes me uncomfortable. My intuition and my legal training tell me that some things should simply not be negotiable, among them certain absolute commitments to fundamental human rights: freedom from cruel, inhuman, and degrading (CID) treatment, as well as freedom from torture. This is, after all, the position adopted in two core human rights treaties: the International Covenant on Civil and Political Rights (ICCPR),3 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (henceforth, the “Torture Convention”).4 Finally, and perhaps most charitably, our “response” may be viewed as part of the political process-as deliberative democracy taking its natural course. But the political process seems to be taking far too long. There are detainees at Guantánamo who have been in United States custody for five years, and every additional day of detention deepens the profound psychological impact on them.5 Three of the Guantánamo detainees have already taken their own lives.6 Additionally, at least 25 detainees have failed in their suicide attempts (in some cases, multiple attempts),7 while many more are clinically depressed.