Richard H. Fallon, Jr. & Daniel J. Meltzer have an interesting article on Habeas Corpus in the War on Terror in the current issue of the Harvard Law Review. In it they argue that the US Supreme Court was right to extend statutory habeas corpus rights to suspected terrorists in Guantánamo Bay but ought not extend constitutional habeas corpus protection to people detained in “wholly foreign locales as Afghanistan or Iraq”. The authors’ argument is essentially that Guantánamo Bay can be categorised as sufficiently connected to the United States to argue that the constitution ought to apply there. This results particularly from the nature of the lease enjoyed over the base (i.e. a perpetual lease giving the US exclusive jurisdiction).

This element of the argument advanced by Fallon & Meltzer is analogous to a leasehold-based argument that I published in the Irish Criminal Law Journal earlier this year (“In the Shadow of Hamdan v Rumsfeld” (2007) 17(2) ICLJ 8) and that has been discussed at length in almost every seminar/colloqium on Guantánamo that I’ve attended in the last few years, but it does suffer a serious deficiency from the perspective of rights-enforcement as it bases rights protection on the location of detention and not on the individual rights of the detainees. More expansive arguments relating to habeas corpus jurisdiction over suspected terrorist detainees are beginning to emerge at the moment, including an argument I’ll be publishing early next year calling for an effet utile approach to the question (abstract available here).

What is particularly significant about all of these arguments, however, appears to be the growning consensus that the US Supreme Court can, should and most probably will recognise Guantánamo detainees as constitutional rights-bearers when it decides Boumediene and Al-Odah this winter (background and briefings available here). Fallon & Meltzer’s article comes very highly recommended, not only for their Guantánamo-related argumentation but also their wider theoretical framework of habeas jurisdiction in the US.