From Baghdad to Bagram: The Length & Strength of the Suspension Clause After Boumediene

Fordham International Law Journal, Dec 2009

This is a predictive Note that will examine the doctrine relating to war-time detention and endeavor to decipher who currently maintains a right to challenge executive detention in the wake of Boumediene. This Note therefore does not centrally discuss the authority of the United States to detain wartime prisoners, what procedure is due to detainees, the wisdom of the Boumediene approach to constitutional domain, or any other related issues. Instead, this Note will attempt to define the outer contours of the Suspension Clause by looking through the Boumediene prism to determine who may presently invoke the protections of the Suspension Clause and in what contexts outside of Guantánamo Bay those protections apply. This Note proceeds in three parts. Part I provides a background on habeas corpus, the heart of the protection preserved in the Suspension Clause, and its semblance in the extraterritorial arena. Part II outlines the history leading up to Boumediene and the law surrounding this decision. Part III will then critically analyze Boumediene and its progeny against the Court's prior precedent in order to develop a framework for analyzing the Suspension Clause. Part III finally uses these concepts in several hypothetical scenarios in order to better illustrate the length and strength of the Suspension Clause, as it stands today.

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From Baghdad to Bagram: The Length & Strength of the Suspension Clause After Boumediene

Fordham International Law Journal - 2009 Article 5 Copyright c 2009 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Justin D. D’Aloia This is a predictive Note that will examine the doctrine relating to war-time detention and endeavor to decipher who currently maintains a right to challenge executive detention in the wake of Boumediene. This Note therefore does not centrally discuss the authority of the United States to detain wartime prisoners, what procedure is due to detainees, the wisdom of the Boumediene approach to constitutional domain, or any other related issues. Instead, this Note will attempt to define the outer contours of the Suspension Clause by looking through the Boumediene prism to determine who may presently invoke the protections of the Suspension Clause and in what contexts outside of Guanta´namo Bay those protections apply. This Note proceeds in three parts. Part I provides a background on habeas corpus, the heart of the protection preserved in the Suspension Clause, and its semblance in the extraterritorial arena. Part II outlines the history leading up to Boumediene and the law surrounding this decision. Part III will then critically analyze Boumediene and its progeny against the Court’s prior precedent in order to develop a framework for analyzing the Suspension Clause. Part III finally uses these concepts in several hypothetical scenarios in order to better illustrate the length and strength of the Suspension Clause, as it stands today. FROM BAGHDAD TO BAGRAM: THE LENGTH & STRENGTH OF THE SUSPENSION CLAUSE AFTER BOUMEDIENE NOTES Justin D. D’Aloia* INTRODUCTION Hafizullah Shahbaz Khiel is an Afghan father of seven.1 After serving five years away from his family as a prisoner in the detention camp run by the U.S. Navy at Guantánamo Bay, Cuba, Khiel was released to Afghan authorities.2 He was soon cleared of all charges and finally reunited with his family in Afghanistan in December 2007.3 But less than a year later, U.S. forces raided Khiel’s home and he was once again taken into custody.4 Since then, he has been held at a U.S.-operated Afghan internment camp with nearly 600 others, notwithstanding documents from Afghan authorities proclaiming his innocence.5 The U.S. Constitution sets out the basic structure for a democratic form of government. Yet it provides little, if any, guidance as to whether, or under what circumstances, any of its * Editor-in-Chief, Fordham International Law Journal; J.D. Candidate, 2010, Fordham University School of Law; B.S., 2006, Rutgers University. The author wishes to thank Liz Shura and Jared Limbach for their thoughtful comments and guidance throughout the drafting process. Special thanks are also due to my parents, Susan and David, Kristen D’Aloia, and Mary Katherine Houston for their continuous support and encouragement. 1. See Kathy Gannon, Guantanamo Prisoner Freed, Arrested Again, MSNBC, Feb. 7, 2009, http://www.msnbc.msn.com/id/29071536 (“Hafizullah was a village elder and a father of seven . . . .”). 2. Id. (stating that “[t]he first time Hafizullah was seized, in 2002, he spent five years at Guantanamo” and that “[u]pon Hafizullah’s release in 2007, the Afghan government held him for three months and then cleared him of all charges”). 3. Id. (“[T]he Afghan government cleared him of all charges in December 2007”). 4. Id. (indicating that “Hafizullah and 13 others were arrested” in a September raid but that “[t]he others were later released”). 5. Id. (“Afghan officials have signed documents attesting to his innocence, but he is still in custody at Bagram Air Base, along with about 600 other prisoners.”). 958 FORDHAM INTERNATIONAL LAW JOURNAL provisions have force beyond the sovereign territory of the United States. Throughout important episodes of American history, the U.S. judiciary has been called upon to answer discrete questions concerning the Constitution’s “extraterritorial” application.6 Nevertheless, the law in this area remains unsettled and no clear rubric exists for answering questions of this nature.7 Notwithstanding the common adage that the Constitution applies in toto within the territory of the United States,8 the more accurate approximation is that its application is circumstantial, both domestically and abroad.9 In June 2008, the Supreme Court extended a right to alien prisoners held by the U.S. military at Guantánamo Bay, Cuba, to challenge the legality of their detentions under the Suspension Clause of the U.S. Constitution in the landmark case of Boumediene v. Bush.10 The case offers a significant contribution to U.S. constitutionalism by indicating that aliens located beyond the strict borders of the United States can receive constitutional 6. See José A. Cabranes, Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law, 118 YALE L.J. 1660, 1660–62 (2009) (identify (...truncated)


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Justin D. D'Aloia. From Baghdad to Bagram: The Length & Strength of the Suspension Clause After Boumediene, Fordham International Law Journal, 2009, pp. 957, Volume 33, Issue 3,