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Journal of International Criminal Justice 2004 2(1):121-132; doi:10.1093/jicj/2.1.121
© 2004 by Oxford University Press
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Symposium on the Guantánamo Entanglement

Black Hole in Guantánamo Bay

George P. Fletcher1

1 Columbia University School of Law

The US government has created a black hole in Guantánamo Bay by refusing to allow the detainees captured in the Afghanistan war to test the legality of their confinement. Next spring, the Supreme Court will decide whether these detainees can bring a writ of habeas corpus to force a hearing on their state. The cornerstone of the government’s legal case is a 1950 decision (in Eisentrager) holding that German ‘enemy aliens’ had no access to the American courts. An analysis of this decision reveals that it has no bearing on the legal status of the captured aliens today. The government has shifted the focus of the argument to whether the Constitution applies abroad. The big questions are whether the Court will consider the Geneva Conventions relevant to the dispute and whether the lawyers for the detainees can convince the court that the executive branch is unconstitutionally seeking to suspend the writ of habeas corpus.


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