This article discusses the Supreme Court's controversial Rasul v. Bush decision--a case dealing with the ability of the federal courts to entertain the habeas petitions filed by terrorist suspects detained at Guantanamo Bay, Cuba. The article seeks to make four contributions. First, it argues that the Supreme Court has misinterpreted its own precedent in its interpretation of the territorial reach of the habeas corpus statute. Secondly, it argues that the Court misread the historical record pertaining to the territorial reach of the writ of habeas corpus--which antedated the adoption of the Constitution and was explicitly engrafted into the text of the Constitution. Thirdly, it argues that the implications of the decision are to impede unnecessarily the ability of the military to prosecute the war on terrorism, and promote forum shopping. Lastly, it proffers several statutory fixes" to ameliorate the consequences of the Rasul decision. The principal thesis of the work is that federal courts must strictly construe the limits of their jurisdiction and that the province of expanding (or contracting) that jurisdiction lies with Congress. In addition, the article also criticizes the court for its implicit reliance upon international norms in order to arrive at a politically expedient conclusion that is in conflict with established domestic precedent and historical understanding of the ancient writ. I hope that this article will stimulate debate on this issue and also draw attention to the oblique reasoning employed by the Court and the potential damage that the overly broad decision will have on the United States' ability to hold enemy combatants and prosecute the war on terrorism.
Northern Illinois University Law Review
Pope, Joseph R.
"Opening the Flood Gates: Rasul v. Bush and the Federal Court's New World-Wide Habeas Corpus Jurisdiction,"
Northern Illinois University Law Review: Vol. 26:
2, Article 3.
Joseph Pope, Opening the Flood Gates: Rasul v. Bush and the Federal Court's New World-Wide Habeas Corpus Jurisdiction, 26 N. Ill. U. L. Rev. 331 (2006).