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.”).
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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)
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