Duke University School of Law

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Rasul v. Bush & Al Odah v. United States

Through their “next friends,” several aliens captured abroad during hostilities in Afghanistan and held in United States military custody at the Guantanamo Bay Naval Base in Cuba brought actions contesting the legality and conditions of their confinement. The aliens include citizens of Kuwait, Australia, and Great Britain. The district court held that it lacked jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States and dismissed the actions with prejudice. The D.C. Circuit Court of Appeals affirmed, following Johnson v. Eisentrager, 339 U. S. 763 (1950), because the aliens in this case were captured during military operations, were in a foreign country when captured, are now abroad and in the custody of the American military, and have never had any presence in the United States. According to the court, the Constitution does not entitle the detainees to due process, and therefore they cannot invoke the jurisdiction of the courts in the United States to test the constitutionality or the legality of restraints on their liberty. The court also rejected the detainees’ argument that Guantanamo Bay is essentially a territory of the United States because the military controls it.

Question Presented:
Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.

Decision under Review

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