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Rasul v. Bush: Unanswered Questions

39 Pages Posted: 20 Jun 2005  

Randolph N. Jonakait

New York Law School


This article discusses some of the many questions left open by Rasul v. Bush, where the Supreme Court held that U.S. courts have jurisdiction to decide habeas corpus petitions from aliens detained at the naval base at Guantanamo Bay, Cuba. The article concludes that Rasul allows aliens detained anywhere by the United States as enemy combatants to seek habeas corpus relief in U.S. courts. Rasul, however, leaves unanswered what substantive grounds aliens detained outside the United States can raise to challenge their detentions. If Guantanamo Bay is treated as the equivalent of U.S. territory, aliens detained there should be able to claim violations of due process rights. Those held elsewhere should be able to claim that their detentions are illegal because they have not been authorized by Congress, and are not within the inherent powers of the President, and that they violate international law.

Keywords: habeas corpus, terrorism, international law, separation of powers

Suggested Citation

Jonakait, Randolph N., Rasul v. Bush: Unanswered Questions. William & Mary Bill of Rights Journal, Vol. 13. Available at SSRN:

Randolph N. Jonakait (Contact Author)

New York Law School ( email )

57 Worth Street
New York, NY 10011-2960
United States

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