Following the attacks of September 11, 2001, the United States responded with military action aimed at eradicating terrorist networks around the world. The action in Afghanistan resulted in several hundred captured enemy combatants being sent to the U.S. naval base at Guantanamo Bay, Cuba. Because the base is not within the territory of the United States, the Bush administration took the position that the detainees could be held indefinitely without review in civilian courts. In a surprising move, the U.S. Supreme Court held that the detainees did have a right to petition civilian courts for habeas corpus review. Thus, the habeas statute was given extraterritorial application by the Court. That decision opened the federal judiciary to these terror suspects and did so in a way that lacks clarity and that could conceivably authorize habeas review of any detention undertaken by the U.S. government anywhere in the world. In November 2005, Congress took steps to curtail the right of detainees at Guantanamo Bay to obtain habeas review, but this move did not address all of the potential sources for confusion, and in some respects the recent action of Congress has added even more ambiguity to the law. Insofar as this has the potential to greatly complicate the war on terror, Congress must consider exercising its authority to amend the habeas corpus statute further than it already has and thereby address the questions that persist.
Brennan T. Brooks,
Doctrines Without Borders: Territorial Jurisdiction and the Force of International Law in the Wake of Rasul v. Bush,
39 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol39/iss1/5