Gideon at Guantanamo: Democratic and Despotic Detention

46 Pages Posted: 14 Jun 2013 Last revised: 15 Jan 2015

See all articles by Hope Metcalf

Hope Metcalf

Yale Law School

Judith Resnik

Yale University - Law School

Date Written: June 9, 2013


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.

Keywords: Gideon, Miranda, Guantanamo, criminal procedure, defense counsel, constitutional rights, access to lawyers, access to courts, torture, interrogation

JEL Classification: K14, K40, K41, K42

Suggested Citation

Metcalf, Hope and Resnik, Judith, Gideon at Guantanamo: Democratic and Despotic Detention (June 9, 2013). Yale Law Journal, Forthcoming, Yale Law School, Public Law Working Paper No. 293, Available at SSRN:

Hope Metcalf (Contact Author)

Yale Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

Judith Resnik

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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