Offshore Detainees and the Role of Courts After Rasul v. Bush: The Underappreciated Virtues of Deferential Review

Abstract

In Rasul v. Bush, the Supreme Court held that federal courts have jurisdiction over habeas corpus petitions filed by detainees at the U.S. naval base at Guantanamo, but was silent on the standards and procedures to be applied to the petitions, and on whether habeas jurisdiction covers detainees at other foreign locations. To foster application of habeas at other military sites for longer-term detainees but maintain military effectiveness against terrorism, this Article sketches a regime for considering detention challenges that builds on a structure emerging in the wake of Rasul and its companion case, Hamdi v. Rumsfeld. Such claims would be heard by military tribunals, subject to narrow and deferential federal habeas review. Having military tribunals conduct the primary factfinding honors key military needs while affording procedural safeguards. Although such deference might disappoint some advocates, this approach carries several underappreciated advantages, because of the real-world dynamics of such review, principally to stimulate better internal checks and balances. Though deferring to military factfinding, courts would retain authority to consider de novo the validity of tribunal procedures, and would remain the ultimate arbiters of the substantive standards governing “enemy combatant” classifications.