Doctrines without Borders: Territorial Jurisdiction and the Force of International Law in the Wake of Rasul V. Bush

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ABSTRACT

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.

TABLE OF CONTENTS

 I.  INTRODUCTION: WHAT IS "JUSTICE" IN THE WAR
     ON TERROR?
 II. BACKGROUND CASES
     A. Ahrens v. Clark
     B. Johnson v. Eisentrager
     C. Braden v. 30th Judicial Circuit Court of
        Kentucky
     D. Rasul v. Bush: Action in the Lower Courts
III. RASUL V. BUSHAT THE SUPREME COURT
     A. The Majority Opinion
     B. Justice Kennedy's Concurrence
 IV. RASUL V. BUSH--THE DISSENTING ANALYSIS OF
     THE COURT RATIONALE
     A. Justice Scalia's Dissent
        1. The Court Fails to Give Due Weight
           to the Text of [section] 2241 which Obviously
           Requires Territorial Jurisdiction
           over the Petitioner
        2. Eisentrager is Directly on Point and
           Should Apply
        3. The Court Misappropriates Braden
        4. The Court's Description of the
           Guantanamo Facility is Baseless
        5. The Court Misinterprets the History
           of the Writ
        6. Conclusion
     B. Parallel Paths and the Roads Not Taken
  V. DEVELOPMENTS SUBSEQUENT TO RASUL AND
     RECOMMENDATION
     A. Dealing with the "Breathtaking" Impact
     B. Congressional Power after Rasul
        1. The Graham-Levin Amendment on
           Guantanamo
        2. A Focus on the Jurisdiction of U.S.
           Courts
        3. The International Law Question
     C. Applying Rasul: Some Early Guidance and
        Potential Dangers
        1. Hamdan's Narrow Application of Rasul
        2. The Court's Open Door Policy
        3. Recommendation: Consider the Entire
           Context when Deciding Hamdan
 VI. CONCLUSION

Nam cetera malificia tum persequare, ubi facta sunt; hoc, nisi provideris, ne accidat, ubi evenit, frustra iudicia inplores: capta urbe nihil fit reliqui victis.

Sallust, Bellum Catilinae 52:4-5

I. INTRODUCTION: WHAT IS "JUSTICE" IN THE WAR ON TERROR?

On September 20, 2001, shortly after the U.S. government determined that Osama bin Laden and al-Qaeda were responsible for the 9/11 terrorist attacks, President George W. Bush addressed a joint session of Congress. (1) Articulating a new doctrine in foreign policy, (2) he issued the following warning: "[A]ny nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime." (3) The goal of this doctrine, which makes host nations responsible for the actions of the terrorists they harbor, was and remains the eradication of terrorist safe havens. …