Territorial Sovereignty and the Evolving Boumediene Factors: Al Maqaleh v. Gates and the Future of Detainee Habeas Corpus Rights

[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.

Editor’s Note: Introducing the University of New Hampshire Law Review

Note from the Editor introducing the University of New Hampshire Law Review

Autumn Foods of White-Tailed Deer in Arkansas

Rumen contents from 65 hunter-harvested deer were collected and analyzed during 1985-86 to estimate the principal autumn foods consumed by white-tailed deer inhabiting the Ozark Mountains, Arkansas River Valley, and Gulf Coastal Plain regions of Arkansas. Deer in the Ozarks and Coastal Plain fed heavily on woody browse species, which comprised 99% of rumina identified from these 2 regions. Acorns were the primary food of deer in these heavily forested areas. Acorns and other woody browse were less important to deer inhabiting the Arkansas River Valley. In this region of interspersed agricultural fields and bottomland forests, soybeans and corn comprised 75% of the diet, and acorns accounted for only 2%

Editor’s Note: Inaugural Symposium Issue on Social Justice

Note from the Editor on the Inaugural Symposium Issue on Social Justice

Elementary simulation of tethered Brownian motion

We describe a simple numerical simulation, suitable for an undergraduate project (or graduate problem set), of the Brownian motion of a particle in a Hooke-law potential well. Understanding this physical situation is a practical necessity in many experimental contexts, for instance in single molecule biophysics; and its simulation helps the student to appreciate the dynamical character of thermal equilibrium. We show that the simulation succeeds in capturing behavior seen in experimental data on tethered particle motion.Comment: Submitted to American Journal of Physic