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Boumediene Applied Badly: The Extraterritorial Constitution after Al-Maqaleh v. Gates

32 Pages Posted: 27 Apr 2011 Last revised: 5 May 2011

Saurav Ghosh

Stanford Law School

Date Written: February 28, 2011


Since 2001, the U.S. has captured and detained hundreds of foreign nationals at overseas facilities, raising the question of whether the Constitution applies extraterritorially to these detainees. Detainee legal challenges over the past decade culminated in the Supreme Court decision Boumediene v. Bush, whereby foreign nationals held at Guantanamo Bay, Cuba, were provided the right to petition for a writ of habeas corpus in federal court. Although this landmark decision provided detainees at Guantanamo the means to challenge their detention, it begged the question whether detainees at other overseas facilities would also be allowed to seek habeas relief. The U.S. Court of Appeals for the D.C. Circuit recently provided an answer to that question in Al-Maqaleh v. Gates: the federal courts lack jurisdiction to hear the habeas petitions of detainees held at Bagram Air Base, Afghanistan.

This paper is principally a response to that decision. I argue that the District Court in Al-Maqaleh faithfully applied the Boumediene multi-factor test for extending habeas extraterritorially, in light of the Supreme Court’s functional, pragmatic analysis in that case. By contrast, the D.C. Circuit employed a wooden, formalistic analysis of the relevant factors and marginalized the centrally important separation of powers concern that animated Boumediene. In light of Boumediene, as well as the demands of the modern international system, the D.C. Circuit’s decision missed the mark, damaging extraterritoriality doctrine with regard to the “sacred writ.”

While some have commented on Al-Maqaleh, there is currently a dearth of legal scholarship situating the case (and its predecessor habeas jurisdiction cases) into extraterritoriality jurisprudence generally. This paper seeks to fill that void by going beyond habeas, to examine extraterritoriality in the context of substantive rights (most importantly, the Due Process Clause of the Fifth Amendment). I argue that because the Supreme Court’s current position on substantive rights - most recently articulated in United States v. Verdugo-Urquidez - formalistically limits such rights to the U.S. national community, it is outdated and in conflict with Boumediene. Because the lower courts have distinguished Boumediene and continue to follow Verdugo, they continue to deny foreign nationals even basic substantive rights, despite the Supreme Court’s move towards a more expansive application of Constitutional protections.

The Supreme Court has therefore left the two halves of extraterritoriality jurisprudence in unfortunate limbo: In light of the doctrinal shift toward functional tests and pragmatism (and away from bright-line rules that invite Executive manipulation), the Court should formulate a clear multi-factor test for substantive rights (as it has already done, in Boumediene, for habeas protection). This would eliminate the current inconsistency and provide detainees the modicum of legal review necessary to legitimize U.S. detention policies.

While the paper discusses precedents at some length, this discussion is necessary to understand not only the flawed analysis in Al-Maqaleh but also the current inconsistency in the doctrine. These precedents suggest that Al-Maqaleh and analogous lower court decisions limiting the extension of substantive rights are not only inconsistent with the spirit of Boumediene, they are also in conflict with gradual expansion of Constitutional rights beyond U.S. borders.

This paper primarily builds on the work of Professor Chimène Keitner and Professor Gerald Neuman. Professor Keitner has formulated an interesting framework for understanding extraterritoriality doctrine, and Professor Neuman has written extensively on Boumediene’s impact on future extraterritoriality analysis. Professors Marc Falkoff and Robert Knowles also provide an alternative, “limited government” interpretation of Boumediene.

Keywords: Boumediene, Al-Maqaleh, Constitutional right, habeas corpus, extraterritorial, detain, detention, Guantanamo, Bagram, Eisentrager, Reid, Verdugo, executive power, Suspension Clause, Rasul, Hamdi, Hamdan, John Bates, Landsberg, Afghanistan, terrorism, global war on terror, GWOT, MCA, enemy combatant

JEL Classification: K33

Suggested Citation

Ghosh, Saurav, Boumediene Applied Badly: The Extraterritorial Constitution after Al-Maqaleh v. Gates (February 28, 2011). Stanford Law Review, Vol. 64. Available at SSRN:

Saurav Ghosh (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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