The idea of the Guantánamo detainee as a Muselmann , the lowest order of concentration camp inmates, contains within it important implications for the new understanding of sovereignty in the era of Guantánamo, in an age of exception. The purpose of this article is to explain the status of those who are detained at Guantánamo Bay. Stated broadly, in assessing that status, we will emphasize the connection between the altered meaning of sovereignty that has accompanied the placing (...) of prisoners in an American penal colony in Cuba and the biopolitical status of the prisoners who reside there. More particularly, we will locate the points of convergence among the factors (the war on terror, sovereignty, and the media) that have produced and reconstituted the legal and ethical status of Guantánamo detainees. (shrink)

Although knowledge of torture and physical and psychological abuse was widespread at both the Guantanamo Bay detention facility and Abu Ghraib prison in Iraq, and known to medical personnel, there was no official report before the January 2004 Army investigation of military health personnel reporting abuse, degradation, or signs of torture. Mounting information from many sources, including Pentagon documents, the International Committee of the Red Cross, Amnesty International, Human Rights Watch, etc., indicate that medical personnel failed to maintain medical records, (...) conduct routine medical examinations, provide proper care of disabled and injured detainees, accurately report illnesses and injuries, and falsified medical records and death certificates. Medical personnel and medical information was also used to design and implement psychologically and physically coercive interrogations. The United States military medical system failed to protect detainee's human rights, violated the basic principles of medical ethics and ignored the basic tenets of medical professionalism. (shrink)

The creation of the prison camp at the U.S. naval base in Guantánamo Bay, Cuba is part of a historical continuity of colonialism on the island. Over two hundred years before the United States sent the first "enemy combatants" to Cuba, the Spanish Empire began sending "enemy Indians" to the island. The rationales and circumstances that gave rise to the prison complex in Guantánamo share much in common with those that motivated Spain to imprison Apaches and other Native (...) people on Cuba. This essay argues that the policies of both Spain and the United States have roots in a similar logic of colonialism. (shrink)

This volume presents a number of controversial cases of enforced medical treatment from around the globe, providing for the first time a common, biopolitcal framework for all of them. Bringing together all these real cases guarantees that a new, more complete understanding of the topic will be within grasp for readers unacquainted with the aspects involved in these cases. On the one hand, readers interested mainly in the legal and medical dimensions of cases like those considered will benefit from the (...) explanation of the biopolitical framework within which each case develops. On the other hand, those focusing on only one of the situations presented here will find the parallels between the cases an interesting expansion of the complexity of the problem. Despite the book's ambitious goal, for those willing to use it as supplemental material or interested in only one of the cases, the chapters can function as self-standing pieces to be read separately. This volume will be a valuable tool for both academics and professionals. Bioethicists in both the analytic and continental traditions, will find the book interesting for not only the specific concepts and issues considered, but also for its constructive bridging of the two schools of thought. In addition to philosophers, the structure of this work will also appeal to lawyers, doctors, human rights activists, and anyone concerned in the most disparate way with real-life cases of enforced medical treatment. (shrink)

The article critically considers the role of NGOs at the US naval base in Guantánamo Bay, Cuba. On the basis of observation of pre-trial hearings for the case against Khalid Sheik Mohammed et al.—those allegedly responsible for the September 11 attacks—the article analyses NGOs as trial monitors of the US military commissions set up to deal with ‘alien unprivileged enemy belligerents’. In spite of continued efforts by human rights NGOs and incremental improvements in the military commissions’ institutional arrangements and (...) practice, the article shows how NGOs have become so much a part of the everyday operation of justice at ‘Gitmo’ that they legitimate the military commissions’ claim to be delivering fair and transparent justice. (shrink)

The shroud of secrecy that the American administration has wrapped around Guantanamo Bay creates a kind of Rorschach test of political views that tell us much more about those holding these views than about the prison and interrogation center itself. But for those less interested in political propaganda, a review of statements on Guantanamo in the Arab country of Yemen reveals some interesting contradictions and complexities. Yemeni statements on Guantanamo reflect contemporary tensions in people's conceptions of national sovereignty, the political (...) interests of a weak state in global geopolitics and a developing conception of human rights in an emerging global social modernity. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Holding Doctors Responsible at Guantánamo*Nancy Sherman (bio)I recently visited the Guantánamo Bay Detention Center with a small group of civilian psychiatrists, psychologists, top military doctors, and Department of Defense health affairs officials to discuss detainee medical and mental health care. The unspoken reason for the invitation to go on this unusual day trip was the bruising criticism the Bush administration has received for its use of psychiatrists (...) and psychologists in the interrogation of suspected terrorist detainees.1We disembarked from our Navy jet to find an island lush and green from recent storms. A small boat took us from the airfield to the naval hospital. From the boat there was no sign of Camp Delta, where the detainees are actually held. Nor was there a sign of prisons or barbed wire or the detention facility's 505 inmates.Our host was the commanding officer of Gitmo, Major General Jay W. Hood (an artillery officer by training), who had replaced Major General Geoffrey Miller, implicated in the "migration" of torture methods from Gitmo to Abu Ghraib. Dressed in fatigues, General Hood briefed us using PowerPoint. His intelligence director told us that interrogators have not used harsh "fear up" tactics—the ones designed to terrify—since 2003.We went by bus from the naval hospital to the 30-bed detainee hospital for quick briefings from a psychiatrist and a physician. Still, we were not permitted to see any detainees or hunger strikers, despite our requests. During our six hours on the ground, we had only a fleeting glimpse of a few detainees outside their cellblocks behind barbed wire and screened fences.Indeed, when I got home and saw the play "Guantánamo: Honor Bound to Defend Freedom," by Victoria Brittain and Gillian Slovo, I had the disquieting feeling that I had absorbed more about detainee life at the theater than I had from actually being at Gitmo. This only amplified my anxiety that what I had heard and seen during my VIP visit sidestepped the central moral issue of whether abuse is still occurring at Gitmo and whether health professionals are, or have been, a party to coercive interrogation. [End Page 199]The question that the Pentagon leadership has been focusing on, and which was a key subject of discussion during our day at Gitmo, is whether there is an ethical difference between using psychologists or psychiatrists on interrogation teams—what the Pentagon calls, "behavioral consultation teams," or BSCTs, pronounced "biscuit." Some in the Pentagon would like to have doctors and psychiatrists, who are bound by the Hippocratic teaching to "do no harm," be the clinicians treating detainees. Psychologists, who are not as bound by Hippocratic dicta, would consult with and advise interrogators. But this is a red herring. It is hair-splitting that detracts from the real issue of whether health professionals of any stripe can ethically be involved in interrogations that may involve coercive techniques or torture. The answer is clearly no. They should not be involved, directly or indirectly, in situations that may lead to the breach of confidential medical records; to torture or to cruel, inhumane, and degrading treatment; or to exploitation of fears or phobias. Mental health professionals simply should not be collaborating with interrogators in inflicting psychological torture.Hood said that "rapport building" was the preferred and an effective interrogation technique, but that is no guarantee that rougher tactics will not be used. The fact is that there is enormous pressure on the people at Guantánamo Bay to get good intelligence for the war on terror, and it is as easy for behavioral scientists as it is for interrogators to compromise their moral standards. Cunning and deception to extract information may be acceptable in some cases. But many people have been outraged to learn from media reports that methods developed by military psychologists to train our own troops to resist torture—the so-called "survival, evasion, resistance, and escape" methods taught at Ft. Bragg—have been "reverse engineered" at Guantánamo Bay to create coercive, psychologically manipulative interrogation techniques for use against detainees.Plato warned long ago that a doctor's skill, abstracted from good character and wisdom, is a neutral... (shrink)

On October 25, 1946, three weeks after the International Military Tribunal at Nuremberg entered its verdicts, the United States established Military Tribunal I for the trial of twenty-three Nazi physicians. The charges, delivered by Brigadier General Telford Taylor on December 9, 1946, form a seminal chapter in the history of medical ethics and, specifically, medical ethics in war. The list of noxious experiments conducted on civilians and prisons of war, and condemned by the Tribunal as war crimes and as crimes (...) against humanity, is by now more or less familiar. That list included: high-altitude experiments; freezing experiments; malaria experiments; sulfanilamide experiments; bone, muscle, and nerve regeneration and bone transplantation experiments; sea water experiments; jaundice and spotted fever experiments; sterilization experiments; experiments with poison and with incendiary bombs. What remains less familiar is the moral mindset of doctors and health care workers who plied their medical skill for morally questionable uses in war. In his 1981 work, The Nazi Doctors, Robert Jay Lifton took up that question, interviewing doctors, many of whom for forty years continued to distance themselves psychologically from their deeds. The questions about moral distancing Lifton raised have immediate urgency for us now. Military medical doctors, psychiatrists and psychologists serve in U.S. military prisons in Guantánamo, Abu Ghraib, Kandahar, and, until very recently, in undisclosed CIA operated facilities around the world where medical ethics are again at issue. Moreover, they serve in top positions in the Pentagon, as civilian and military heads of command, who pass orders and regulations to military doctors in the field, and who are in charge of the health of enemy combatants, as well as U.S. soldiers. Because we recently marked the sixtieth anniversary of the judgment at Nuremberg, I want to awaken our collective memory to the ways in which doctors in war, even in a war very different from the one the Nazis fought, can insulate themselves from their moral and professional consciences. (shrink)

Abstract: I argue that Orientalism continues to construct Arabs as subjects that cannot suffer violence, particularly the violence of torture. Beginning with Edward Said’s observation that Orientalists constructed ‘Arabs’ in the nineteenth -century as inorganic, metallic, and mineralized beings, I trace these themes through various sites in and around Guantanamo Bay. One finds the tropes of Orientalism in the Bybee memo as well as in the diary of Mohamedou Ould Slahi. Through these three distinct but related moments, one finds that (...) Orientalism continues to produce Arabs as inorganic entities beyond death and thereby immune to violence and specifically the violence of torture. Insofar as imperialism has co-opted the language of non-violence by constructing its enemies as inviolable, one must recognize the Orientalized Arab as a receptor of limitless ‘non - violent’ hostilities. (shrink)

Ethical debates over the use of mental health knowledge and practice at the Guantánamo Bay detention facility have mostly revolved around military clinicians sharing detainee medical information with interrogators, falsifying death certificates in interrogations, and disagreements over whether the Central Intelligence Agency’s “enhanced interrogation techniques” violated bioethical principles to do no harm. However, debates over the use of magnetic resonance imaging in the mental health evaluations of detainees have received little attention. This paper provides the first known analysis of (...) such debates over MRI use in the case of Abd al-Rahim al- Nashiri. Through a close reading of open-source legal documents such as defense motions, prosecution motions, judge rulings, and al-Nashiri’s mental health evaluation, debates over MRI use become interpretive contests over the very meanings of mental illness and the extent to which MRI results can verify whether he was tortured in CIA custody. Such work can revitalize interest in the neuroethics of national security. (shrink)

The controversy over abusive interrogations of prisoners during the war against terrorism spotlights the need for clear ethics norms requiring physicians and other clinicians to prevent the mistreatment of prisoners. Although policies and general descriptions pertaining to clinical oversight of interrogations in United States' war on terror prisons have come to light, there are few public records detailing the clinical oversight of an interrogation. A complaint by the Federal Bureau of Investigation (FBI) led to an Army investigation of an interrogation (...) at the United States prison at Guantanamo Bay. The declassified Army investigation and the corresponding interrogation log show clinical supervision, monitoring and treatment during an interrogation that employed dogs, prolonged sleep deprivation, humiliation, restraint, hypothermia and compulsory intravenous infusions. The interrogation and the involvement of a psychologist, physician and medics violate international and medical norms for the treatment of prisoners. (shrink)

Scholars have mostly analyzed information from mental health practitioners, attorneys, and institutions to critique mental health practices in the War on Terror. These sources offer limited insights into the suffering of detainees. Detainee accounts provide novel information based on their experiences at Guantánamo. Mohamedou Ould Slahi’s Guantánamo Diary is the only text from a current detainee that provides a first-person account of his interrogations and interactions with health professionals. Despite being advertised as a diary, however, it has undergone (...) redaction from American government officials. This article examines Slahi’s account of his interrogations and representations of mental health at Guantánamo and considers its role within the narrative function of the nation. At stake is the right of detainees to narrate, scholars to critique medical practices in the War on Terror, and the nation’s attempts to control its narration. (shrink)

:This essay provides a reading of Steve McQueen's critically acclaimed movie Hunger, which tells the story of the hunger strike of Bobby Sands in light of contemporary hunger strikes around the world and especially in Guantánamo. The central concern of the essay is to read Hunger together with Horkheimer and Adorno's Dialectic of Enlightenment, showing how both works problematize the sacrificial subjectivity of enlightenment, its instrumental rationality, and sovereign temporality, while advancing a devastating critique of Western civilization. I argue (...) that Hunger situates the high-security prison within the self-destructive tendency of enlightenment and depicts how self-sacrificial resistance emerges as a response to sovereign domination. Interpreting the figure of Bobby Sands as the reversal of Odysseus in the encounter with the Sirens, I explore how insurgent sacrifice interrupts the dialectic of enlightenment and points to a new configuration of subjectivity and time. (shrink)

For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that (...) some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts. (shrink)

Liberty and freedom are frequently invoked to justify political action. Presidents as diverse as Woodrow Wilson, Franklin Delano Roosevelt, John F. Kennedy, Ronald Reagan, and George W. Bush have built their policies on some version of these noble values. Yet in practice, idealist agendas often turn sour as they confront specific circumstances on the ground. Demonstrated by incidents at Abu Ghraib and Guantánamo Bay, the pursuit of liberty and freedom can lead to violence and repression, undermining our trust in (...) universal theories of liberalism, neoliberalism, and cosmopolitanism. Combining his passions for politics and geography, David Harvey charts a cosmopolitan order more appropriate to an emancipatory form of global governance. Political agendas tend to fail, he argues, because they ignore the complexities of geography. Incorporating geographical knowledge into the formation of social and political policy is therefore a necessary condition for genuine democracy. Harvey begins with an insightful critique of the political uses of freedom and liberty, especially during the George W. Bush administration. Then, through an ontological investigation into geography's foundational concepts—space, place, and environment—he radically reframes geographical knowledge as a basis for social theory and political action. As Harvey makes clear, the cosmopolitanism that emerges is rooted in human experience rather than illusory ideals and brings us closer to achieving the liberation we seek. (shrink)

Bolzaneto, Abu Grahib, Guantanamo: luoghi in cui la tortura è riemersa nel “civile”occidente contemporaneo. A perpetrarla sono i rappresentanti di uno Stato che si definisce “di diritto”: uno Stato la cui giustificazione ultima è la difesa e la protezione dei diritti inviolabili degli individui. La tortura, lungi dall’essere scomparsa, dunque permane come tecnica di potere nei moderni stati democratici. Essa non solo persiste come dato di fatto. Al contrario, negli ultimi decenni sono riemerse giustificazioni della tortura come pratica legale e (...) legittima per garantire la sicurezza dello Stato. Di fronte a queste nuove giustificazioni della tortura è oggi più che mai importante lasciarsi guidare dall’esperienza storica piuttosto che da ipotetici scenari futuri e, seguendo l'amonimento della studiosa statunitense Judith Shklar, fondare la difesa dei diritti sull’assunto, “ampiamente giustificato da ogni pagina di storia politica, che alcuni rappresentanti del potere statale si comporteranno regolarmente, su piccola o grande scala, in modo illegale e brutale, a meno che non venga loro impedito di farlo”. (shrink)

Force-feeding of detainees at Guantánamo BayIn April, the US Department of Defense reportedly sent 40 additional military medical personnel, including doctors and nurses, to the Guantánamo Bay Naval Base to carry out the force-feeding of detainees on hunger strike.1 By the end of June, up to 104 of the remaining 166 individuals held in US military detention at Guantánamo were refusing food. The protest against conditions at the base, and the fate of those being held there—including those (...) already cleared for transfer or release—began in February 2013. In June, it was reported that as many as 44 of the hunger strikers were being force-fed by military medical teams.2The response by the US authorities to the hunger strike prompted expressions of outrage from the international medical community.3,4 In April, the American Medical Association wrote to the US secretary of defense, insisting that ‘forced feeding of [competent] detainees violates core ethical values of the medical profession.’5 Adding the voice of the profession in the UK to these calls, at its annual conference in June, the British Medical Association condemned the participation of doctors and nurses in the force-feeding, calling on governments worldwide to ensure that all prisoners have access to confidential, independent medical treatment, and supporting any clinician who challenged cruel, inhuman or degrading treatment. Also in June, the BMA Chairman wrote to President Obama and US secretary of defense, Hagel, urging them to immediately suspend medical involvement in force-feeding at Guantánamo, and to institute an urgent inquiry into how the current situation was allowed to develop.Force-feeding mentally competent adults who are refusing food is a clear violation of medical ethics and is unjustifiable, as articulated by the World Medical Association's Declaration of Malta.6 Doctors with dual loyalties, including military doctors, are bound by the same …. (shrink)

This book starts from the proposition that the field of intelligence lacks any systematic ethical review, and then develops a framework based on the notion of harm and the establishment of Just Intelligence Principles. As the professional practice of intelligence collection adapts to the changing environment of the twenty-first century, many academic experts and intelligence professionals have called for a coherent ethical framework that outlines exactly when, by what means and to what ends intelligence is justified. Recent controversies, including reports (...) of abuse at Guantanamo Bay and Abu Ghraib, allegations of extraordinary rendition programmes and the ever-increasing pervasiveness of the ‘surveillance state’, have all raised concerns regarding the role of intelligence in society. As a result, there is increased debate regarding the question of whether or not intelligence collection can be carried out ethically. _The Ethics of Intelligence_ tackles this question by creating an ethical framework specifically designed for intelligence that is capable of outlining under what circumstances, if any, different intelligence collection activities are ethically permissible. The book examines three of the main collection disciplines in the field of intelligence studies: imagery intelligence, signals intelligence and human intelligence. By applying the ethical framework established at the beginning of the book to these three important intelligence collection disciplines, it is possible to better understand the ethical framework while also demonstrating its real-life applicability. This book will be of much interest to students of intelligence studies, ethics, war and conflict studies, security studies and IR. (shrink)

The political history of the twentieth century can be viewed as the history of democracy’s struggle against its external enemies: fascism and communism. This struggle ended with the fall of the Berlin Wall and the collapse of the Soviet regime. Some people think that democracy now faces new enemies: Islamic fundamentalism, religious extremism and international terrorism and that this is the struggle that will define our times. Todorov disagrees: the biggest threat to democracy today is democracy itself. Its enemies are (...) within: what the ancient Greeks called 'hubris'. Todorov argues that certain democratic values have been distorted and pushed to an extreme that serves the interests of dominant states and powerful individuals. In the name of ‘democracy’ and ‘human rights’, the United States and some European countries have embarked on a crusade to enlighten some foreign populations through the use of force. Yet this mission to ‘help’ others has led to Abu Ghraib and Guantanamo, to large-scale destruction and loss of life and to a moral crisis of growing proportions. The defence of freedom, if unlimited, can lead to the tyranny of individuals. Drawing on recent history as well as his own experience of growing up in a totalitarian regime, Todorov returns to examples borrowed from the Western canon: from a dispute between Augustine and Pelagius to the fierce debates among Enlightenment thinkers to explore the origin of these perversions of democracy. He argues compellingly that the real democratic ideal is to be found in the delicate, ever-changing balance between competing principles, popular sovereignty, freedom and progress. When one of these elements breaks free and turns into an over-riding principle, it becomes dangerous: populism, ultra-liberalism and messianism, the inner enemies of democracy. (shrink)

Scenes of violence and incisions into the flesh informeethe demand for law. The scene of little girls being held down in practices of female circumcision has been a defining and definitive image that demands the attention of human rights, and the intervention of law. But the investment in protecting women and little girls from such a cut is not all that it seems.eeLaw's Cuteeon theeeBody of Human Rights: Female Circumcision, TortureeeandeeSacred Flesheeconsiders how such imageseecome to inform laweeand the investment of (...) advocates of law in an imagination of this scene. Drawing on psychoanalytic andeepostcolonialeetheory, and accompanying ideas in political theology, Juliet Rogers examines the language, imagery and excitement that accompanies recenteeinitiatives to legislate against what is called 'female genital mutilation'. The author compliments this examination witheea consideration of the scene of torture exposed in images from Abu Ghraib and Guantanamo Bay.eeRogers argues that the modes ofeefascination and excitement that accompanyeesceneseeof torture and female circumcisioneebetray the fantasy of aeepolitical conditioneeagainst which the subject of liberal law is imagined; this is subjectivityeein aeestate of non-mutilation, non-prohibition or, in a psychoanalytic idiom, non-castration.eeTo support the fantasy of this subject,eethe mutilated subject, the authors suggests, is rendered as flesh cut from the democratic nation state, deserving of only selective human rights, or none at all. (shrink)

PHILOSOPHICAL PROBLEMS IN THE LAW is the perfect introduction to the philosophy of law. This collection of articles and cases helps you consider philosophical problems associated with the law through examples, case studies, and decision scenarios. Case examples and recent decisions such as Boumediene v. Bush (rights of Guantanamo detainees) and Brown v. Entertainment Merchants Association (freedom of expression and violent video games) coupled with new readings help you see the real-world relevance of what you are learning.

Omar Khadr was arrested at the age of 15 by the U.S military and has remained in custody in Guantanamo for 8 years. Today, he plead guilty to five war crime charges. Despite stating in open court last summer that he would not plead guilty, today he muttered a confession. In accordance with the plea bargain, Khadr plead guilty to murder, attempted murder, conspiracy, providing material support to terrorists, and spying. Following this, a jury imposed the harshest possible sentence, 40 (...) years imprisonment. Khadr may receive parole after eight years. The first year of this sentence will be served in Gauntanamo, following which he may be repatriated. The government of Canada does not have to repatriate Khadr, nor is parole guaranteed. Rather than hypothesizing outcomes, I want to discuss the case philosophically. (shrink)

The conventional dictionary definition of a term is important to the citizen and soldier obeying laws and judging actions that might fall under the term. The “Convention Against Torture” is both binding U.S. law and gives a clear, conventional definition of torture. But the Bush Administration’s standards for interrogating foreign detainees, originating from the Attorney General’s office, failed to respect the prohibitions of torture in the Convention and two other important international human rights documents. I criticize these standards on seven (...) grounds. The directives from President Bush and his Administration thus ordered or allowed most of the terrible recent tortures of Afghanis and Iraqis at Bagram Air Force Base, Guantanamo Bay and Abu Ghraib prisons. (shrink)

Despite intensive work by human rights organizations to garner global condemnation of torture, in the years since the atrocities of Abu Ghraib and Guantanamo Bay were exposed, support in the United States for the use of torture has increased, and torture also attracts significant support in many other countries. This paper seeks to understand the affective work that the ‘ticking time bomb scenario’ and its imagined dramatization does in shaping how torture is understood. The literature is replete with debates over (...) whether the scenario distorts or accurately describes the actual circumstances in which decisions about torture occur, and the moral criteria that ought to be brought to the decision-making process. In describing the scenario as a “thought experiment,” however, these analyses obscure the work that this imagined scene does in shaping how people evaluate the use of torture – work that takes place at the affective and somatic levels. Induced into a process of racially inflected and affectively laden identifications and aversions, the paper suggests that the “subjects” of this thought experiment do very little thinking and thus fact-based or logical counter-arguments are of little use in shifting evaluations of torture. Rather, we need to understand the affective work that somatically grounded stories do in normalizing and inducing subjects to embrace torture. The paper is particularly interested in how imagined scenarios can be used to institute affects that freeze and immobilize, and how we might construct other narratives to encourage more dynamic and fluid forms of affective experience and identification. Exploring the link between narratives and more dynamic affects may offer more productive strategies for encouraging people to shift positions as they confront new evidence and encounter other experiences and bodies. (shrink)

Presidential power has provoked increasingly vigorous debate since the turn of this century. In recent years, scholars and lawyers have been grappling with how Congress’s dictates may limit the president’s Commander-in-Chief power to detain enemy combatants at Guantanamo Bay, to fight wars abroad, and to conduct intelligence activities at home. But policymakers have not yet explored the many possibilities for invoking the president’s “Take Care” power to change health care policy.This article explores the scope and limits of President Barack Obama’s (...) ability to invoke his executive authority to reform health care. Specifically, it identifies ways the Obama Administration can use directives to: expand Medicaid and State Children’s Health Insurance Program coverage through section 1115 waivers; test quality initiatives through Medicare demonstration authority; expand health information technology; allow drug reimportation and experiment with contracting power under Medicare; enhance patient protections and private coverage requirements; lift coverage restrictions on Medicaid and SCHIP; and build on the health insurance program for federal employees. Consistent with the mission of the Legal Solutions in Health Reform project, this article does not endorse a particular policy. Instead of recommending “what,” it explains “how.”. (shrink)

The political history of the twentieth century can be viewed as the history of democracy’s struggle against its external enemies: fascism and communism. This struggle ended with the fall of the Berlin Wall and the collapse of the Soviet regime. Some people think that democracy now faces new enemies: Islamic fundamentalism, religious extremism and international terrorism and that this is the struggle that will define our times. Todorov disagrees: the biggest threat to democracy today is democracy itself. Its enemies are (...) within: what the ancient Greeks called 'hubris'. Todorov argues that certain democratic values have been distorted and pushed to an extreme that serves the interests of dominant states and powerful individuals. In the name of ‘democracy’ and ‘human rights’, the United States and some European countries have embarked on a crusade to enlighten some foreign populations through the use of force. Yet this mission to ‘help’ others has led to Abu Ghraib and Guantanamo, to large-scale destruction and loss of life and to a moral crisis of growing proportions. The defence of freedom, if unlimited, can lead to the tyranny of individuals. Drawing on recent history as well as his own experience of growing up in a totalitarian regime, Todorov returns to examples borrowed from the Western canon: from a dispute between Augustine and Pelagius to the fierce debates among Enlightenment thinkers to explore the origin of these perversions of democracy. He argues compellingly that the real democratic ideal is to be found in the delicate, ever-changing balance between competing principles, popular sovereignty, freedom and progress. When one of these elements breaks free and turns into an over-riding principle, it becomes dangerous: populism, ultra-liberalism and messianism, the inner enemies of democracy. (shrink)

The idea of due process of law is recognised as the cornerstone of domestic legal systems, and in this book Larry May makes a powerful case for its extension to international law. Focussing on the procedural rights deriving from Magna Carta, such as the rights of habeas corpus and nonrefoulement, he examines the legal rights of detainees, whether at Guantanamo or in refugee camps. He offers a conceptual and normative account of due process within a general system of global justice, (...) and argues that due process should be recognised as jus cogens, as universally binding in international law. His vivid and compelling study will be of interest to a wide range of readers in political philosophy, political theory, and the theory and practice of international law. (shrink)