In Boumediene v. Bush, the U.S Supreme Court was faced with a post-colonial issue regarding overseas authority and correlating precedents. Broadly, the question arose—for a third time since Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006)—whether constitutional rights extend to non-sovereign territories under U.S control. More specifically, the case encompassed a question of whether U.S. Constitution’s guarantee of habeas corpus rights applies to noncitizen detainees at Guantanamo Bay. Often presented as a constitutional, national security, or international law dilemma, the Court’s decision on the matter relied on legal doctrine from U.S imperial influence over the Caribbean, Cuba, and Guantanamo post 1898, when its control over these regions commenced. The ruling on this case was significant in light of the fact that Guantanamo has frequently been deemed to lay beyond the Constitution’s application and to be a “black hole” of international law. Specifically, the Court tried to address these anomalous conditions in its ruling on Boumediene v. Bush by holding that detention at Guantanamo Bay falls within the scope of habeas corpus in the Constitution’s Suspension Clause. The Court also ruled in this case that the Military Commissions Act (2006) violated the Suspension Clause since its procedural substitutes (judicial reviews of “enemy combatant” status determined by a Combatant Status Review Tribunal system) for federal habeas jurisdiction were highly restrictive, did not allow the detainee to see the evidence against him, and did not guarantee the detainee’s right to counsel (Chesney). Regarding the reasoning behind permitting the detainees to invoke habeas rights, the Justices cited the Court’s own precedents from The Insular Cases. These were cases in the early 20^th century through which the Court ruled that noncitizen residents of territories under U.S control ought to have at least the “guaranties of certain fundamental personal rights declared in the Constitution”. The majority opinion was written by Justice Kennedy, who was also joined by Justices Souter, Stevens, Ginsburg, and Breyer (Chesney). Several contributing factors had to be weighed in deliberation, such as U.S and Cuban sovereignty, limited rights protections, and strategic overseas goals (Hernandez). The Supreme Court was closely divided in trying to answer whether Guantanamo detainees should be able to invoke the Suspension Clause and whether the Military Commissions Act was constitutional. However, despite past ambiguities, the Court was able to address most subjects presented therein due to its lengthy experience in prior years dealing with such issues of jurisdiction and habeas rights at the base (Chesney).

Regarding these ambiguities, Boumediene v. Bush established a clearer common understanding of some legal issues on the base than had existed previously. The ruling specified that Guantanamo detainees do in fact have the right to challenge their detention in federal court. Although the Court held that the writ of habeas corpus applies to base detention at Guantanamo—it failed to address the legality of present-day base occupation itself. Petitioners at the base have argued that the government does not have the military detention authority to detain everyday civilians vis-à-vis international humanitarian law. They interpret IHL to denote that military detention only is justifiably applied to combatants (soldiers) or civilians who directly involve themselves with a state’s armed forces. The government argued that the part of IHL which mentions civilians who have direct involvement with the armed forces merely signifies when lethal force is justified—not military detention. The Court never settled this dispute either, but will eventually have to. (Hernandez).

Another interrelated issue of the case that the Court did not adequately address/resolve is the issue of sovereignty by the U.S and Cuba over the base. The Platt Amendment dictated that that the U.S. may maintain bases on Cuban soil and that Cuba is a U.S. protectorate. Cuba was provided with “ultimate sovereignty” and the U.S. with “jurisdiction and complete control.” This phrasing does not clearly specify which norms and obligations exist on the base and what “ultimate sovereignty” entails before U.S. occupation ends. However, it is clear that the U.S. is provided with indefinite control to some extent. It is sometimes argued, therein, that the base evades limits imposed by constitutional and international law (Hernandez). At the time, the government wanted to implement a strict geographic test, whereby a noncitizen could only invoke a constitutional protection based on their actual habitation in a de jure sovereign territory of the U.S. This test would exclude Guantanamo because of Cuba’s nominal sovereignty there, as asserted by the Platt Amendment. The detainees, on the other hand, proposed that the test be based on whether the U.S. has de facto sovereignty over the area—regardless of formal/verbatim assignment. While both the government and the detainees cited evidence from the historical record, the Court concluded that historical citation proved inconclusive on the issue (Chesney).

Furthermore, constitutional law has long been denying statehood to U.S. territories abroad, resulting in the exclusion of these populations’ rights protections. Since 1901 via The Insular Cases, the law has very rarely imposed constitutional limitations upon political authorities and has just as selectively ensured individual rights protections to territories such as the Caribbean and Asia. This sort of powerplay motivates the creation of a nonstandard legal zone or “black hole” at Guantanamo Bay. It was intentionally excluded from U.S. sovereign authority, vaguely situated somewhere in between Cuba’s sovereignty and U.S. control, and classified as a territory outside the application of constitutional rights—all in order to avoid checks on political authority overseas in international and constitutional law. As this sort of issue still exists today in many areas of the world. Despite the Boumediene ruling’s clarification and specific guarantee of habeas rights to Guantanamo detainees, uncertainty remains for other individual rights protections at the base as well as checks on executive authority in extraterritorial contexts at large. The scope of the case technically only encompasses jurisdiction at Guantanamo Bay. As a result, American law could continue to employ anomalous reasoning behind jurisdiction and base occupation to enact additional rights-free zones [similar to Guantanamo] in other areas of the world, including over 98 countries where U.S bases are stationed. (Hernandez).

As for more recent implications of the case, an article in New York Times—written in 2018— analyzed the topical significance of Boumediene v. Bush, especially as it pertains to the detention of undocumented immigrants within the country. Despite the Boumediene ruling, the courts concluded in recent years that a 2005 statute banning federal courts from hearing claims and appeals from noncitizens subject to “expedited removal”—re. their legal eligibility for asylum, among other things— does not violate the Constitution. Two questions have been raised after the case concluded. Namely, whether the Court’s decision went too far in its extension of constitutional habeas corpus to noncitizens suspected of/charged with terrorism outside the U.S. or not far enough. Others have critiqued the ruling by asserting that habeas corpus should be available not only to Guantanamo Bay but also other U.S. territories and that the Court did not clarify any procedural, evidentiary, or substantive rules that the habeas cases must adhere to. (Vladeck). The denial of rights to human beings in territories under U.S. occupation reflects badly not only upon the country’s constitution from a moral standpoint, but its constituency, as well. Socrates has purported that the amount of any quality retained by a whole is due to the amount of that same quality amongst its parts (Brown). The original writers of the U.S. Constitution may have neglected to expand upon the application of habeas corpus, but present-day citizens and political authorities are the determinants in the matter now. The latter is choosing to leave these issues largely undecided; the courts and population of the U.S. are superimposing their own biases and judgements upon the U.S. Constitution by allowing themselves to be morally represented by outdated ideals in a recontextualized sociopolitical environment.

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Works Cited

Chesney, Robert M. “Boumediene V. Bush.” American Journal of International Law, vol. 102, no. 4, 1 Oct. 2008, pp. 848–854. JSTOR, doi:10.2307/20456685. https://www-jstor-org.ezproxy.drew.edu/stable/pdf/20456685.pdf?ab_segments=0%252Fdefault-2%252Fcontrol

Vladeck, Stephen I. “Will the Rule of Law Apply Along the Border?” New York Times, 12 June 2018, https://www.nytimes.com/2018/06/12/opinion/boumediene-rule-of-law-border.html.

Hernandez-Lopez, Ernesto. “Boumediene v. Bush and Guantanamo, Cuba: Does the Empire Strike Back.” SMU Law Review, vol. 62, 117, 2009, https://scholar.smu.edu/cgi/viewcontent.cgi?referer=http://scholar.google.com/&httpsredir=1&article=1352&context=smulr

Brown, Eric. “Plato’s Ethics and Politics in The Republic.” Stanford Encyclopedia of Philosophy, Stanford University, 12 Sept. 2017, https://plato.stanford.edu/entries/plato-ethics-politics/#AdopStra

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