The U.S. Supreme Court in Rasul v. Bush and Al-Odah v. United States held that detainees at Guantanamo Bay may challenge their detentions via writs of habeas corpus. Justice Stevens' majority opinion held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This holding is potentially unbounded, perhaps enabling someone detained at Kandahar or even Diego Garcia to challenge his detention via the great writ. It appears to be a striking break from the 1950 Johnson v. Eisentrager decision, which strongly intimated that no such lawsuits were possible. How did we go from a constitutional regime where no alien outside of the United States could challenge his detention to one in which virtually anyone may be able to do so?
2003-2004 Cato Sup. Ct. Rev. 49 (2003-2004)
Scholarly Commons Citation
Katyal, Neal K., "Executive and Judicial Overreaction in the Guantanamo Cases" (2004). Georgetown Law Faculty Publications and Other Works. 1883.