Diritto Pubblico Comparato ed Europeo

Sommario

1. Lo scenario. – 2. Il percorso giuridico che porta a Guantánamo. – 3. Guantánamo, a legal black hole. – 4. Da Guantánamo verso la Corte suprema degli Stati Uniti. – 5. La pronuncia della Corte suprema del 28 giugno 2004. – 6. Considerazioni finali.

Abstract

This paper analyses the provisions implemented against terrorism by the U.S. Administration. It focuses, in particular, on what is happening in Guantánamo, the part of Cuba occupied by the U.S. military guard that has been turned into a prison for terrorists, America’s “enemy aliens”. The paper begins by examining the treatment of terrorists (or suspected terrorists) and the violation of the principle of the Rule of Law and it ends with the Supreme Court decisions which reestablished this violated principle and many others. Through constitutional law it is possible to consider how far the State (the Executive in this case) can limit individual rights, in order to protect national security as well as to establish the tools that individuals have to assert their rights and what balancing mechanisms the system is provided with. This case helps to explain the institutional dynamics operating in a consolidated democracy such as the United States and allows us to identify the instruments provided for self-protection. The conclusion is that the Rule of Law “stopped in Guantánamo, but then went on to Washington, where the Supreme Court is”.