The Uniqueness of Gitmo and the Practical Irrelevance of Boumediene

by Roger Alford

Great book Kal. Kudos and adulations. I have a question of clarification. One of the interesting things about Raustiala’s discussion of the modern application of territoriality is the uniqueness of Guantanamo. He writes,

“Guantanamo’s unusual legal status is reflect in [its] history, and is underscored by two factors. One is the lack of any status of forces agreement for American troops at the base…. [T]he hundreds of thousands of U.S. troops stationed in bases around the world are … the subject of dozens of status of forces agreements…. Guantanamo is the only major American overseas base without a SOFA. The second, closely related, factor is the unique lease arrangement with Cuba. The lease was signed by the newly independent Cuba and the United States in 1903 is effectively perpetual: it requires the assent of both parties to terminate it.” (p. 191).

My question is whether the uniqueness of Guantanamo renders Boumediene‘s discussion of territoriality largely irrelevant, or at least confined to a class of one military base. Later in the book, Raustiala writes,

“there was little in Boumediene that truly stopped the executive branch from switching the Constitution on or off at will. The Bush Administration could have held the same detainees in Iraq, or Afghanistan, or a military base elsewhere in the world…. Indeed, the detainees could be moved to such places now…. [I]n its careful attention to practicality, and to function rather than form, [the Court] suggested that there was something quite special, even unique, about Guantanamo. No other American based could be said to be formally within another sovereign state but ‘in every practical sense…not abroad.’” (p. 216).

So my question is whether Boumediene has any practical relevance once Guantanamo is closed down. It seems that the United States does not have “de facto” sovereignty where the United States has entered into SOFAs with the host state, and therefore I wonder whether you think the Constitution follows the flag to protect alien detainees held in overseas military bases besides Gitmo. And if your answer to that question is yes, does it also apply when the United States has even lesser control, such as detention by international, coalition, or foreign forces at our request and encouragement. Is the fundamental difference that Gitmo is essentially “territorial”, while all the other detention arrangements are “extraterritorial”?

I know you hint at an answer in the book, but I would appreciate it if you could clarify what you think the answer would be in these other scenarios.

http://opiniojuris.org/2009/07/28/the-uniqueness-of-gitmo-and-the-practical-irrelevance-of-boumediene/

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