Mark Falkoff
by Joe King
Marc Falkoff, a professor in the NIU College of Law, co-authored a brief argued Wednesday, Dec. 5, before the United States Supreme Court, asserting that prisoners being held at Guantanamo Bay should have the right to challenge their detentions in federal court.
Most of the 30-odd detainees in question were captured by Pakistani forces at the Afghan border, before being turned over to the U.S. military. They have been held at the U.S. Naval base in Cuba for as long as six years without formal charges or being informed of the evidence against them.
Such treatment, say Falkoff and the other authors of the brief, is a violation of the writ of habeas corpus (the right to challenge detention) guaranteed by the U.S. Constitution. The administration of President George W. Bush and the Pentagon argue the detainees are entitled to no such right because they are not being held on U.S. soil.
The two sides have been clashing over the issue for several years, and the court has on two previous occasions ruled that the prisoners have a right to habeas corpus. In each instance, Congress passed laws that the administration claims legitimized the practice. The constitutionality of the second such law is at question in the latest case, and Falkoff is confident the court will strike it down.
“The gist of the case is that, as the Supreme Court has already ruled, Guantanamo is under the complete control and jurisdiction of the United States, and the only law that applies there is U.S. law; and therefore, these prisoners have a right to habeas corpus,” Falkoff says. “If my clients were being held in Kansas, no one would even dispute that claim.”
Falkoff expects that he Supreme Court will take several months to rule on the case.
Falkoff’s involvement in the case stems from his representation of 12 Yemeni men who have been held at Guantanamo Bay for about six years.
“The average person looking at the evidence against my clients would be shocked that we have kept people in prison for six years based upon it,” he says. “We’re not talking about technicalities; we’re talking about people being held on triple or quadruple hearsay, being imprisoned because someone heard a first name over a walkie-talkie.”
Earlier this year, Falkoff compiled and edited a book of poetry written by prisoners at the facility. “Poems from Guantanamo: The Detainees Speak” spent 15 weeks on the list of best-selling poetry anthologies.