The Lasting Viability of Rasul in the Wake of the Detainee Treatment Act of 2005
Pope, Joseph R.
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This article examines the jurisdictional features of the newly enacted Detainee Treatment Act of 2005 and the Supreme Court's Hamdan v. Rumsfeld decision as it relates to the retroactive application of the Act. In particular, the article considers the impact of the Act on the Supreme Court's earlier Rasul v. Bush decision and considers whether the statute, as interpreted by the Court in Hamdan, successfully abrogated that controversial decision or leaves certain unintended infirmities untreated. The article explores the Congressional history of the Act and explains how that history supported the Supreme Court's ultimate conclusion in Hamdan that Congress failed to divest the federal courts of their jurisdiction to hear habeas corpus petitions brought by the detainees as granted to the Courts by Rasul. The article concludes that the primary holding of Rasul, that foreign detainees can petition for habeas relief outside the territorial jurisdiction of the United States, remains largely intact.