Habeas Corpus, Protection, and Extraterritorial Constitutional Rights: A Reply to Stephen Vladeck’s 'Insular Thinking About Habeas'

Abstract

This short essay is an exchange with Professor Steve Vladeck's about my Article entitled: Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa Law Review 101 (2011). My Article showed that the Supreme Court’s landmark ruling in Boumediene v. Bush relied on a demonstrably incorrect understanding of key precedents known as the Insular Cases, which arose from actions of the United States military and the new civil governments of the islands acquired by the United States at the turn of the twentieth century — Puerto Rico, the Philippines, Hawaii, and for a time Cuba. This reply to Professor Vladeck discusses how noncitizens outside the sovereign territory of the United States were understood at the time of the Insular Cases to lack protection from the Constitution, both its individual rights provisions and the Habeas Suspension Clause. I also highlight two little-known Supreme Court cases from the era of the Insular Cases which help illuminate the Court's understandings of the Suspension Clause.

Keywords: Constitution, habeas, Suspension Clause, extraterritoriality, protection, Insular Cases, Boumediene