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Boumediene, Munaf, and the Supreme Court's Misreading of the Insular Cases


Andrew Kent


Fordham University School of Law

November 9, 2011

Iowa Law Review, Vol. 97, No. 101, 2011
Fordham Law Legal Studies Research Paper No. 1957430

Abstract:     
In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process Clause might be a limit on the U.S. military’s ability to cooperate in a foreign nation on security detention matters during an armed conflict. In both Boumediene and Munaf, the Court reached back for supportive precedents to an earlier era of U.S. empire: the period of territorial expansion and military interventions following the Spanish-American War of 1898. The Court then decided important cases about the legality of U.S. military and civil activities in the newly annexed islands of Puerto Rico, Hawaii, and the Philippines, and in Cuba, where the United States was conducting its first humanitarian intervention. A handful of the most famous decisions are known as the Insular Cases - "insular" because the cases concerned U.S. activities in these islands. In 2008, the Court relied substantially on a few Insular Cases to sketch a vision of a global Constitution protecting rights around the world, even for military enemies. But in so relying on the Insular Cases, the Court in 2008 erred. Little that it wrote about the Insular Cases was correct - as to law or fact. The Court in 2008 misunderstood that the Insular Cases were highly relevant to contemporary legal disputes precisely because they reject global constitutionalism and human-rights universalism. In other words, the Insular Cases, properly understood, mean literally the opposite of what Boumediene claimed. The 2008 Court demonstrably misread the few Insular Cases it discussed, failed to consider many more Insular Cases that were on point, and misconstrued key historical facts regarding the U.S. intervention in Cuba and acquisition of the Guantanamo Bay naval facility. The Article concludes that Boumediene was wrongly decided and should be overruled.

Number of Pages in PDF File: 81

Keywords: Constitution, Boumediene v Bush, Munaf v Geren, insular cases, laws of war, extraterritoriality

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Date posted: November 9, 2011 ; Last revised: November 21, 2011

Suggested Citation

Kent, Andrew, Boumediene, Munaf, and the Supreme Court's Misreading of the Insular Cases (November 9, 2011). Iowa Law Review, Vol. 97, No. 101, 2011; Fordham Law Legal Studies Research Paper No. 1957430. Available at SSRN: http://ssrn.com/abstract=1957430

Contact Information

Andrew Kent (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
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