Since 2001, the United States has detained hundreds of foreign nationals at overseas facilities, raising the question of whether the Constitution applies extraterritorially to these detainees. The Supreme Court’s decision in Boumediene v. Bush provided detainees being held at Guantanamo Bay, Cuba, the right to petition for a writ of habeas corpus in federal court. But applying that holding in Al Maqaleh v. Gates, the U.S. Court of Appeals for the D.C. Circuit held that detainees held at Bagram Air Base, Afghanistan, lack the ability to seek habeas relief.

This Comment is principally a response to that decision. I argue that the district court in Al Maqaleh faithfully applied the Boumediene multifactor 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 formalistic analysis and marginalized the 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 decision missed the mark, damaging extraterritoriality doctrine with regard to the Great Writ.

This Comment also addresses extraterritoriality in the context of substantive rights. 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in United States v. Verdugo-Urquidez—formalistically limits such rights to the U.S. national community, it is outdated and conflicts with Boumediene. Since the lower courts have distinguished Boumediene and follow Verdugo-Urquidez, they wrongly 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), the Court should formulate a clear multifactor test for substantive rights. This would eliminate the current inconsistency and provide detainees the modicum of legal review necessary to legitimize U.S. detention policies.


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