Cato Supreme Court Review: 2007-2008

By Robert A. Levy; Ilya Shapiro et al. | Go to book overview

Rights over Borders: Transnational
Constitutionalism and Guantanamo Bay

David D. Cole*

In June 2008, more than six years after the first prisoners were brought to a makeshift military prison camp at Guantanamo Bay, Cuba—bound, gagged, blindfolded, and labeled “the worst of the worst”—the Supreme Court in Boumediene v. Bush1 declared that they have a constitutional right to challenge the legality of their detention in federal court. The detainees may be excused if they did not leap for joy at the result. After all, the Court ordered no one released, did not address the question of whether the detainees were lawfully detained or treated, and merely decided as a threshold matter that they had a right to take their cases to a federal district court—a question the Court seemed to have decided four years earlier in the first Guantanamo case it considered, Rasul v. Bush.2 Yet the decision was in fact a profound—and in many respects surprising—defeat for the Bush administration in the legal “war on terror.” It means that Guantanamo is no longer a “law-free zone”— and that the courts will play a vital role in ensuring that the rule of law applies to the ongoing struggle with Al Qaeda. As critically important as the Boumediene decision is for the place of law in the war on terror, however, its most profound implications may lie in what it reflects about altered conceptions of sovereignty, territoriality, and rights in the globalized world.


I.

Boumediene is groundbreaking in at least three respects. First, for the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the president on

*Professor, Georgetown University Law Center.

1 553 U.S. ———, 128 S. Ct. 2229 (2008).

2 542 U.S. 466 (2004).

-47-

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