Guantánamo Bay: Towards Legality?

AuthorFiona De Londras
Publication Date01 January 2008
Date01 January 2008
Łnamo Bay:Towards Legality?
Fiona de Londras
This article outlines the US Supreme Court’s approach to the habeas corpus entitlements of sus-
pected terrorists detained in Guanta
Łnamo Bay and argues for the extension of constitutional
habeas corpus rights to them.The article considers two ways in which the SupremeCourt might
carry out this task: ¢rst,‘the territorial approach’ (based on domestic legal principles of ‘unin-
corporated territories’ and principles of leasehold), and secondly,‘the extraterritorial approach’
(based on international purposive approaches to the reach of human rights treaties exempli¢ed
by the European Court of Human Rights’Article 1jurisprudence). For reasons of e¡ectivenessof
protection,the Article expresses a clear preference for the latter.The House of Lords decisio n in R
(Al-Skeini) vSecretary of State forDefence (2007) is proposed as a template for such a development.
Finally the article refutes arguments rejecting such a development based on the ‘trade-o¡ thesi s’
and perceptions of judicial competence.
Since the beginning of the ‘GlobalWar onTerrorism’the United States has pur-
sued a seeminglydeliberate strategy of trying to place suspected terrorists outside
of the reach of the United States federal courts’ habeas corpus jurisdiction. John
Yoo notes that this was, in fact, one of the sole points of unanimity among
administration lawyers when strategies and legal doctrine were being discussed
in the wake of the attacks on theWorld Trade Centre.
While Guanta
Łnamo Bay
is not the only place where suspected terrorists have been detained outside of the
reach of federal law,
over the past ¢ve and a half years it has become an ideologi-
cal and legal battle¢eld between the US Supreme Court and the ‘political
branches’ (ie theExecutive and Congress).Thusfar, everydecision of the Supreme
Court by which Guanta
Łnamo Bay has been brought back into the domestic legal
fold through the asser tion of detainees’ habeas corpus rights h as been followed by
legislation designed to reverse it.
Lecturer,Department and Faculty of Law, UniversityCollege Cork.
Earlier versions of this paper wereprese ntedat the SLSA Annual Meeting, KentUniversity (2007), the
International Graduate Legal Research Conference, King’s College London (2007), the Postgraduate
Conference on Criminal Justice and Human Rights, University College Cork (2007) and the SLS
Annual Meeting, DurhamUniversity (2007). My thanks for comments receivedfrom fellow panellists
and others at these conferences and for comments on an earlier draft fromMa
Ład Enright, although
the usual disclaimer applies.The paper drawson rese archwhich is generously funded by the National
Universityof Ireland and bythe President’s O⁄ce,UCC.
1 J.Yoo,War by OtherMeans: An Insider’sViewof theWar onTerror (NewYork:Atlantic Monthly Press,
2 In September 2006 President G.W.Bush con¢rmed reports that the Central Intelligence Agency
had operated a‘secret prisons’ operation outside of the United States and, while suspending the
programme,expressly reserved the option of recommencingsuch activities in the future ^ see, eg,
S. G. Stolburg,‘President Moves 14 Held in Secret to Guanta
Łnamo’New YorkTi mes 6 September
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(1) 36^58
This article de¢nes the Supreme Court’s approach to habeas corpus in Guanta
namo Bay as ‘rights-enforcing’, meaning that it is concerned with the recognition,
protection and enforcement of individual rights. In contrast, congressional activity
followingbothRasul vBush
(Rasul)andHamdan vRumsfeld
(Hamdan) suggeststhat
the political branches conceive of these decisions as ‘democracy-enforcing’, meaning
that the government may introduce myriad measures in relation to (non-citizen
suspected terrorists provided theydo so in a (structurally) democratic and constitu-
tionally appropriate manner (usually by means of legislation).
Thus, this paper will
argue, the Supreme Court’s decisions point towards an interest in protecting the
individual rights of suspected terrorists, whereas the political branches have concen-
trated on the perceived demands of national security and a furtherance of the Execu-
tives position that providing suspected terrorists with the right to bring habeas
corpus petitions to federal courts is security-endangering.
The di¡ering approaches of the judicial and political branches of government
appear to indicate that they stand at cross-purposes to one another on the issue of
suspected terrorists’ right to challenge the lawfulness of their detention in Guan-
Łnamo Bay. The interaction between the US organs of state on this issue has
given rise to something of a‘ping-pong situation’ between the Supreme Court
and Congress, which results particularly from the Court’s concentration thus far
on legislative habeas corpus provisions which are ^ by their very nature ^ suscep-
tible to amendment or repeal by Congress. If, as the caselaw thus far suggests, the
Supreme Court is tru ly committed to providing habeas corpus rights to Guanta
namo Bay detainees, it now appearsthat the only e¡ective option available to the
Justices is the recognition of these detainees as constitutional rights-bearers. This
Article commends such an approach and considers two ways in which the
Supreme Court might carry out this task: ¢rstly it considers what the author
terms‘the territorial approach’ (based on domestic legal principles of ‘unincorpo-
rated territories’ and principles of leasehold), and secondly it considers what is
termed ‘the extraterritorial approach’ (based on international purposive
approaches to the reach of human rights treaties exempli¢ed by the European
Court of Human Rights Article1 jurisprudence). For reasons of e¡ectiveness of
protection, the Article expresses a clear preference for the latter.
The House of Lords decision in R (Al-Skeini) vSecretary of State for Defence
provides a valuable example of the incorporation of international human rights
3 542 US 466 (2004).
4 548 US__(2006);126 S Ct 2749 (all subsequent page numbersrefer to this edition).
5 Citizens of the United States enjoy constitutional rights regardlessof where they are detained or
whether they are classi¢ed as suspected terrorists,‘unlawful enemy combatants’etc. See eg, Hamdi
vRumsfeld542 US 507 (2004).
6 For more on this disti nction see Londras,‘In the Shadow of Hamdan vRumsfeld:HabeasCor-
pus Rights of Guanta
Łnamo BayDetai nees’ (2007) 17ICLJ 8.
7 This is re£ected in the administration’s creation of Combatant Status Review Tribunals in
response to the Supreme Court’s dec ision in Rasul (n 3 above) instead of having simply made
habeas corpus procedures available to these individuals. Even where the political branches have
shown someconcern for detainees’ individual rights,th is has been coupled with an equally strong
desire to ensure that those rightscan not be vindicated in federal courts: see discussion of Detainee
Treatment Act 2005 and Military Commissions Act 2006 below.
8 [2007] 3 WLR 33; see also the Court of Appeal decision in this case at [2007] QB 140.
Fiona de Londras
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(1) 36^58

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