The University of New Hampshire Law Review


[Excerpt] “In November 2010, the U.S. government prosecuted in a civilian federal court an accused terrorist detainee housed since 2004 at the Guantanamo Bay Detention Center (Guantanamo Bay). The Obama Administration considered this trial a “test case” for prosecuting accused terrorist detainees in civilian federal courts. Of the more than 280 charges against the detainee defendant, a civilian jury convicted him of one count and acquitted him of the remaining charges. Yet, the defendant received a life sentence without parole.

This “test case” is one example of a changing landscape in international armed conflict and detainee rights jurisprudence following September 11, 2001. This Note discusses one area of American constitutional law that has clearly evolved in recent detainee rights litigation: the extraterritorial reach of the Suspension Clause and extension of habeas corpus rights to detainees held beyond U.S. sovereign territory.

Historically, territorial sovereignty determined the extraterritorial reach of the Suspension Clause. In 2008, however, Boumediene v. Bush greatly impacted the role of territorial sovereignty in extraterritorial habeas jurisprudence. In Boumediene, the Supreme Court developed a practical, multi-factor test for determining the reach of the Suspension Clause while holding that federal courts were not foreclosed from entertaining habeas petitions from Guantanamo Bay detainees. This was the first decision to allow detainee foreign nationals held beyond U.S. sovereign territory to seek habeas corpus relief through the federal courts. Now that Guantanamo Bay has been addressed, recently, the focus has shifted to detainees held at the Bagram Theater Internment Facility (Bagram) in Afghanistan.

In May 2010, the D.C. Circuit in Al Maqaleh v. Gates held that the balance of Boumediene’s multi-factor test weighed against extending the Suspension Clause to four detainees captured beyond Afghanistan and detained at Bagram as unlawful enemy combatants. By analyzing the development of the Boumediene multifactor test and focusing on its application to the Bagram detainees, this Note proposes that territorial sovereignty is no longer a controlling or driving factor in today’s extraterritorial habeas analysis. Furthermore, this Note provides a few practical recommendations for future applications of the Boumediene multi-factor test and addresses some unanswered questions in applying the test in future detainee cases.

Part II provides a brief history of the extraterritorial habeas jurisprudence relating to foreign national detainees leading up to Al Maqaleh. Part III discusses the Al Maqaleh decisions in both the district court and the court of appeals. Part IV analyzes the declining role that territorial sovereignty plays in today’s habeas analysis. Part IV also discusses various unanswered questions that await decision by the Supreme Court in applying the Boumediene test in future detainee cases.”

Repository Citation

Luke R. Nelson, Territorial Sovereignty and the Evolving Boumediene Factors: Al Maqaleh v. Gates and the Future of Detainee Habeas Corpus Rights, 9 U.N.H. L. REV. 297 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss2/9