The Four Corners of the Earth: Does the Suspension Clause Protect Aliens Detained Abroad by the United States Military?

Abstract

Throughout the War on Terror, the United States Military has detained thousands of suspected terrorists as “enemy combatants” in overseas detention facilities. Even after the Supreme Court’s decision in Boumediene v. Bush, which held that aliens detained as enemy combatants at Guantanamo Bay have constitutional habeas corpus rights, it remains unclear whether the Suspension Clause of the United States Constitution protects alien detainees at other overseas facilities. Al Bakri v. Bush, a habeas action filed by an alien detained at Bagram Airfield Internment Facility in Afghanistan, will test whether the Suspension Clause now extends to “the four corners of the earth.” To determine whether constitutional habeas corpus protection is available to aliens like Al Bakri who are being held abroad, this Note will first address the historical reach of the common law and explore how it functions in the Suspension Clause. Part II will demonstrate that the Supreme Court and lower federal courts have generally restricted the extraterritorial effect of the Constitution and have only recognized constitutional rights in favor of aliens with substantial connections to United States territory. Part III will show that territorial considerations likewise controlled whether aliens detained as enemy combatants during World War II possessed constitutional and statutory standing to seek habeas corpus relief. Part IV will trace the Court’s War on Terror habeas corpus jurisprudence and evaluate the functional test resulting from the Boumediene decision. Finally, the Note will apply the Boumediene test to Al Bakri v. Bush and demonstrate that aliens detained abroad are not entitled to constitutional habeas protection.Ultimately, this Note will establish that since territorial considerations determine the ability of an alien to claim constitutional protection, alien enemy combatants, who like Al Bakri are detained beyond United States territory, are not entitled to Suspension Clause protection.