Document Type

Article

Publication Date

2011

Abstract

The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s substantive, fundamental, non-derogable norms to help determine whether constitutional protections apply to aliens abroad would be consistent with the precedents relied on by the Boumediene Court, and would allay the Court’s practical concerns as well as ground the Court’s test on the important normative principles that underlie its opinion. This analysis rejects the conclusion reached recently by the D.C. Circuit that detainees held by the United States at the Bagram Airforce Base in Afghanistan have no habeas rights, concluding that detainees held by the United States military for a prolonged period of time at a military base or other secure facility without being afforded adequate due process, are constitutionally entitled to habeas review and that aliens tortured by United States officials abroad fall within the constitution's protections.

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