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50 Loy. L. Rev. 1 (2004)
Closing the Guantanamo Loophole

handle is hein.journals/loyolr50 and id is 11 raw text is: ARTICLES
CLOSING THE GUANTANAMO LOOPHOLE
Gerald L. Neuman*
The constitutional status of the Guantanamo Bay Naval
Base on the island of Cuba has suddenly gone from an issue of
esoteric interest to refugee lawyers to a problem attracting
intense global attention. The Administration's claims concerning
a total absence of legal constraints on its actions at Guantanamo
have become a national disgrace. The Supreme Court granted
certiorari in November 2003 to review one aspect of the
Administration's claims-whether federal courts are utterly
powerless to hear any challenges brought by foreign nationals
imprisoned at Guantanamo in connection with the war on
terrorism.'   Whether and how        the Court will resolve that
question remains uncertain at this writing.
Many legal perspectives could be brought to bear on the
current situation at Guantanamo, including global and regional
human rights law, international humanitarian law, international
criminal law, U.S. constitutional law, U.S. administrative law,
U.S. military law, U.S. criminal law, and the law of federal
jurisdiction. This article will focus primarily on issues of U.S.
constitutional law and federal jurisdiction. In particular, it will
* Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law School.
This article is based in part on the Brief Amici Curiae of Former U.S. Government
Officials In Support of Petitioners, filed in Rasul v. Bush, 124 S.Ct. 1494 (2003) (No.
03-334), and Al Odah v. United States, 124 S.Ct. 534 (2003) (No. 03-343). Additional
material included here reflects the author's own views, and is not attributable to the
Amici or to co-counsel. I owe thanks to Mary Hahn, Harold Hongju Koh, and Peter
Rosenblum, and to Doris Cho, Kati Daffan, Beth Hooton and Rashad Hussain for
assistance in research.
1. Rasul v. Bush, 124 S.Ct. 534 (2003). The Supreme Court granted certiorari on
the following question: 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. Id. at 534.

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