66 Pages Posted: 22 Feb 2007
Rasul v. Bush and the Intra-territorial Constitution is one part of a broader project to develop a broad, substantive understanding of the Rasul case, as a challenge to the conventional view that Rasul offers little more than a narrow jurisdictional holding. This article argues that Rasul not only conferred jurisdiction on federal courts to hear habeas petitions challenging detentions in Guantanamo, but also concluded that detainees should be afforded certain fundamental constitutional rights. This is a contestable proposition because prior case law had restricted the applicability of constitutional rights to foreigners on foreign soil.
Nevertheless, the article proceeds by first rejecting the view that Guantanamo detainees can be considered "enemy aliens" held on "foreign soil," by describing the distinctive legal status both the place of Guantanamo and the detainees held there, occupy. It then argues that a significant footnote in the Rasul opinion expressly concludes as a matter of law that detainees should be afforded basic constitutional rights, and demonstrates the footnote's firm historical and doctrinal grounding in the so-called Insular Cases from the turn-of-the century and from more recent, functionalist jurisprudence of Justices Harlan and Kennedy. Finally, the article provides a framework for what those fundamental constitutional rights should include, and charts the ways in which current procedural protections provided by the military and defended by the government throughout the post-Rasul litigation are constitutionally deficient.
Keywords: Guantanamo, Rasul, Al Odah, Detainees, Insular Cases, Eisentrager
Suggested Citation: Suggested Citation
Azmy, Baher, Rasul v. Bush and the Intra-Territorial Constitution. NYU Annual Survey of American Law, Forthcoming; Seton Hall Public Law Research Paper No. 964207. Available at SSRN: https://ssrn.com/abstract=964207