Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay

This essay argues that the most profound implications of the Supreme Court’s decision in Boumediene v. Bush may lie not in what it says about the place of law in the war on terror, but in what it reflects about the Supreme Court’s altered conceptions of sovereignty, territoriality, and rights in the globalized world. Boumediene was groundbreaking in at least three respects. For the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the president on an issue of military policy in a time of armed conflict. Also for the first time, the Court extended constitutional protections to noncitizens outside U.S. territory during wartime. And for only the third time in its history, the Court declared unconstitutional a law restricting federal court jurisdiction. The Court has traditionally sought to avoid such confrontations through the application of statutory interpretation, bending over backward to interpret statutes to preserve judicial review where it might be unconstitutional to deny such review. But the real significance of the decision may lie in what it portends for modern-day conceptions of sovereignty, territoriality, and rights. The Bush administration relied on old-fashioned conceptions of sovereignty and rights in arguing that habeas corpus jurisdiction did not extend to Guantanamo, and that federal courts should have no constitutionally recognized role there. The Court’s decision, by contrast, reflects new understandings of these traditional conceptions, understandings that pierce the veil of sovereignty, reject formalist fictions of territoriality where the state exercises authority beyond its borders, and insist on the need for judicial review to safeguard the human rights of citizens and noncitizens alike. And while Boumediene may appear unprecedented from a domestic standpoint, it fits quite comfortably within an important transnational trend of recent years, in which courts of last resort have played an increasingly aggressive role in reviewing (and invalidating) security measures that trench on individual rights