How We Should Think About the Constitutional Status of the Suspected Terrorist Detainees at Guantanamo Bay

Authors

Akash R. Desai

First Page

1579

Abstract

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. It argues that the difficult questions concerning how to define the detainees' constitutional status cannot be answered by courts employing a formalistic analysis that characterizes the issue as one governed by the notion of sovereignty. Instead, a more substantive approach is warranted that examines theories used to interpret the Constitution's scope. After discussing these theories, this Note proposes that the textured membership theory provides a useful approach in determining the Constitution's extraterritorial scope as it pertains to the Guantanamo detainees.

Recommended Citation

Akash R. Desai, How We Should Think About the Constitutional Status of the Suspected Terrorist Detainees at Guantanamo Bay, 36 Vanderbilt Law Review 1579 (2021)
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss5/4