Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

By Kal Raustiala | Go to book overview

7
OFFSHORING THE WAR ON TERROR

The Court is fashioning wholly indefensible doctrine if it permits
the executive branch, by deciding where its prisoners will be tried
and imprisoned, to deprive all federal courts of their power to
protect against a federal executive's illegal incarcerations…
1

—Justice Hugo Black, dissenting in
Johnson v. Eisentrager (1950)

A few days before New Year's Day, 2002 John Yoo and Patrick Philbin, two lawyers in the Department of Justice, drafted a memorandum for the Department of Defense. The memo was entitled Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba.2 Shortly after the attacks on September 11, 2001, the Bush administration had announced plans to try suspected terrorists by military commission, a kind of military court. As the memo was being completed, the war in Afghanistan was still ongoing. But coalition forces had taken Kabul and other major cities and had already captured many suspected Al Qaeda members. The Bush administration feared detaining these individuals within the United States and generally rejected the criminal justice model of counterterrorism championed by previous presidents.3

The United States naval base at Guantanamo, the subject of the lawyers’ memo, was appealing as a long-term site for detention and trial. It was distant from the Middle East, very secure, and, as the Justice Department noted, probably free of the influence of American courts due to its location outside the territory of the United States. In time the detention camp at Guantanamo would become a source of sustained criticism around the

-187-

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