Bruce Corey · February 2010
78 GEO. WASH. L. REV. 846 (2010)
In 2001, Congress authorized President Bush to “use all necessary and appropriate force against . . . persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . .” Acting under this authority, the United States Executive imprisoned thousands of people in detention sites around the world, including Cuba, Afghanistan, Thailand, and so-called “black sites.” In Boumediene v. Bush the Supreme Court held that noncitizens detained at Guantanamo Bay, Cuba have a right under the Suspension Clause to challenge their indefinite detention in federal court through a writ of habeas corpus.
Do the noncitizens held at these other detention sites have this same basic opportunity to be heard? The Boumediene Court’s analysis and recent scholarship suggest they do not.
Although employing a “functional,” multi-factor approach, the crux of the Court’s analysis in Boumediene was the determination that Guantanamo Bay was a de facto sovereign of the United States. The path the Court took to this conclusion suggests that Guantanamo is the only United States de facto sovereign in the world, and thus the only candidate for an extraterritorial application of the Suspension Clause. Indeed, the traditional prerequisites of de facto sovereignty are complete jurisdiction and control—a test that is not met by any other detention site publicly maintained by the United States military.
After exposing the doctrinal and practical problems of using de facto sovereignty to determine the extraterritorial reach of the Suspension Clause, this Note offers a new framework for courts to determine when the Clause reaches a petitioner held abroad. Specifically, it proposes that when the United States detains people in the formal territory of another country, the Clause’s reach should depend on whether that country has expressly or impliedly waived its jurisdiction over the person petitioning the court for habeas relief. This approach preserves the original understanding of the Constitution, which, as shown below, is a particularly valuable asset of a proposed construal of the Suspension Clause. Equally important, this approach produces logical results—something critically absent from the doctrine articulated in Boumediene.
Part I traces the meaning and Founding-era understanding of sovereignty by parsing a symbolic opinion by the Marshall Court and examines the contemporary use of these principles in foreign relations law. Part II provides a brief background of habeas corpus history and jurisprudence and unpacks the meaning of de facto sovereignty. Part III argues that using de facto sovereignty as a factor in determining the writ’s reach is inconsistent with the history of the Suspension Clause and produces unacceptable practical implications. Finally, Part IV proposes a new solution to the extraterritorial habeas puzzle that is fleshed out through fictitious and real-life examples involving foreign U.S. military detention.
