Published online by Cambridge University Press: 27 February 2017
1 Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010).
2 Boumediene v. Bush, 128 S. Ct. 2229 (2008) (reported by Robert M. Chesney at 102 AJIL 848 (2008)).
3 See Exhibit A of Declaration of Colonel Charles A. Tennison at 13, Al Maqaleh v. Gates, 604 F.Supp.2d 205 (D.D.C. 2009) (No. 1:06-cv-01669). Recent news reports indicate that the United States intends to hand more control over the base to Afghanistan in 2011. See, e.g., Julian, E. Barnes, U.S. Hopes to Share Prison with Afghanistan, L.A. Times (June 9, 2010)Google Scholar, at http://articles.latimes.eom/2010/jun/09/world/la-fg-bagram-20100609.
5 See Brief for Respondents-Appellants at 18, Al Maqaleh v. Gates (D.C. Cir.).
6 See Reply Brief for Respondents-Appellants at 2, Al Maqaleh v. Gates (D.C. Cir.).
7 See Joint Brief for Petitioners-Appellees at 54-55, Al Maqaleh v. Gates (D.C. Cir.) (citing U.S. Const. Art. I, §9, cl. 2).
8 On this issue, see generally Kal, Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (2009)Google Scholar.
9 E.g., In re Yamashita, 327 U. S. 1 (1946). Gen. Yamashita was detained in the Philippines, then a U.S. possession.
10 Johnson v. Eisenträger, 339 U.S. 763 (1950).
11 Id. at 779.
13 Rasul v. Bush, 542 U.S. 466 (2004).
14 See Detainee Treatment Act of2005, Pub. L. No. 109-148,119 Stat. 2739 (2005); Military Commissions Act of 2006, Pub L. No. 109-366, 120 Stat. 2600 (2006).
15 128 S.Ct. at 2244.
16 Id. at 2259.
17 140 U.S. 453 (1891).
18 E.g., Downes v. Bidwell, 182 U.S. 244 (1901).
19 354 U.S. 1 (1957).
20 Boumediene v. Bush, 128 S.Ct. at 2257, 2258.
21 Id at 2253.
22 Id. at 2261.
23 Id. at 2258.
24 Reply Brief for Respondents-Appellants at 7, Al Maqaleh v. Gates (D.C. Cir.).
25 128 S.Ct. at 2261.
26 The Obama administration has been strengthening these procedures in recent years. Brief for Respondents- Appellants at 18, Al Maqaleh v. Gates (D.C. Cir.).
27 The Castro regime has long opposed the base, whose indicators of U.S. permanence (beyond a century of use) include a hotel, a go-kart track, and a roller hockey rink. Scott, Higham & Peter, Finn, Camp Costly: The Renovated Naval Station at Guantanamo Bay Now Boasts Many Comforts of Home. And They Haven’t Come Cheap , Wash. Post, June 7, 2010 Google Scholar, at A1.
28 Quoting Johnson v. Eisentrager, 339 U.S. at 779.
29 Quoting Boumediene v. Bush, 553 U.S. at 2259.
31 Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (Jan. 22, 2009), available at http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities.
32 Approximately 181 are known to remain at the base. Higham, & Finn, , supra note 27. Several have sued to remain at the camp rather than be returned home. See Justices Decide US May Send Two Detainees Back to Algeria , N.Y. Times, July 18, 2010 Google Scholar, at A15.
33 President Barack Obama, Remarks by the President on National Security (May 21, 2009), at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09. Detainees drawn from the battlefield in Afghanistan are, of course, a different matter than Al Qaeda-linked detainees captured outside zones of conventional combat.
34 A newer facility at Parwan, near Bagram, is intended to replace the Bagram detainment facility.
35 Laura, King, 7 Taliban Killed in Attack on Bagram Air Base , L.A. Times (May 18, 2010)Google Scholar, at http://www.latimes.com/news/nationworld/world/la-fgw-bagram-attack-20100519,0,1091227.story.
36 Transfer to Bagram is probably no solution to the existing detainee problem at Guantánamo, however, since under conventional federal jurisdiction doctrine, the right to habeas would automatically follow the detainees to Bagram.
37 See, e.g., Tell Me More with Cheryl Corley: Court Rules in Favor of Guantanamo Detainees (National Public Radio broadcast June 13, 2008); Goldsmith, Jack, The Detainee Shell Game , Wash. Post, May 31, 2009 Google Scholar. On the evolution of the drone program, see Jane, Mayer, The Predator War, New Yorker, Oct. 26, 2009 Google Scholar, at 36. The executive may also find it more attractive to transfer detention responsibilities to foreign governments, thereby avoiding entanglements with U.S. courts altogether.
38 Johnson v. Eisentrager, 339 U.S. 763, 795 (1950) (Black, J., dissenting).