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The Art Belongs to the Artists
No full textThis Article examines the rights of detainees interned at the Guantánamo Bay Naval Station to claim ownership of cultural work produced during their imprisonment. Through a series of arbitrary policies, the U.S. government alternately punished detainees for creating works of art, confiscated paintings and drawings, and otherwise denied detainees’ rights to control their creative works. This Article suggests the need to understand these policies as acts akin to plunder—that is, as a practice long associated with colonialism as a means through which the artifacts of the material culture of conquered peoples were expropriated and claimed as “trophies” of conquest. It argues that the U.S. government’s deprivation of Guantánamo detainees’ art implies the intent to dehumanize and obstruct their capacity for self-reliance and agency, a practice not dissimilar to the exercise of colonial power.
This Article examines the status of Guantánamo detainees as surrogates upon whom to exact retribution for the terrorist events of September 11, 2001. The United States waged a campaign of dehumanization and brutalization against non-state actors through unlawful processes of extraordinary rendition, including the kidnaping and torture of detainees during their years of interment at the Guantánamo Bay Naval Station.
Notwithstanding their circumstances, detainees created art, at times clandestinely, at other times with Department of Defense permission. Whether surreptitious or authorized artwork, the United States endeavored to deny detainees agency to claim their cultural works in order to promulgate a narrative of the artists as one-dimensional persons unworthy of basic human rights.
While acknowledging the fraught application of the rule of law and the treatment of Guantánamo detainees, this Article asserts that government efforts to obstruct detainees’ rights to their art violates a body of international and domestic laws designed to protect cultural works that speak to the human condition
The Nuances of Prosecutorial Nonenforcement
No full textThe academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs between important values and principles.
This Article brings much-needed nuance to the debate surrounding prosecutorial nonenforcement. It provides a three-tiered taxonomy of nonenforcement decisions: the method of nonenforcement, the justification for nonenforcement, and the identity of nonenforcement decision makers. It also explains how different features of nonenforcement implicate conflicting values, such as individualization and consistency. By providing this taxonomy and highlighting these tradeoffs, the Article seeks to improve the terms of the debate surrounding prosecutorial nonenforcement. In so doing, it demonstrates that although abstract discussions about nonenforcement can be valuable, they are no substitute for an assessment of the substance of those decisions
Study of the Hague System of International Design Patent Protection under the Paradigm of Global Administrative Law
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