Toward a Limited-Government Theory of Extraterritorial Detention
Falkoff, Marc D.
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The United States military's detention of hundreds of men at the Naval Base at Guantanamo Bay since January 2002 has drawn intense international condemnation, focused mainly on the United States' refusal to afford the detainees minimal due process protections. The Insular Cases, Eisentrager, and Reid all played a role when the Court next considered whether constitutional protections extended to non-citizens outside of U.S. territory. In Downes, Justice White described the core constitutional protections afforded to residents of unincorporated territories as "absences" of government power, not as "fundamental rights. ... We believe that whether or not non-citizens have a constitutional "right" to be free from torture or extrajudicial detention abroad by the U.S. government, the courts may recognize that the U.S. government does not have a "right" to act in this manner.