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Volume 106

Note

Are There Rights in Guantánamo Bay: The Great Writ Rings Hallow

Kayla Anderson, J.D. Candidate, Cornell Law School, 2021; Notes Editor, Cornell Law Review, Volume 106; B.A. Arizona State University, 2017

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4 Aug 2021

This Note argues that the district court should decide that the entirety of the Fifth Amendment applies to Guantánamo Bay detainees given previous jurisprudence, the nature of the War on Terror, and the protection of detainee rights. However, this Note also details that the possible ramifications of such a broad decision render it unlikely that the district court will decide that the Fifth Amendment applies in full in Qassim. Additionally, this Note argues that no matter what decision the district court makes regarding the Fifth Amendment, the court should also institute a CIPA-like review process that affords Guantánamo Bay detainees with meaningful habeas review.

Part I of this Note discusses the difference between criminal prosecution and habeas corpus, detailing the specifics of how each process operates and analyzing the burdens of proof applicable in both criminal prosecution and habeas corpus. Part II of this Note analyzes constitutional rights abroad for United States citizens and noncitizens. In particular, Part II demonstrates that United States citizens retain most constitutional rights while abroad and notes that Supreme Court jurisprudence has consistently held that noncitizens do not have constitutional rights abroad. Part III of this Note addresses the evolution of constitutional rights in Guantánamo Bay; particularly, it explains how these rights have ebbed and flowed since the opening of Guantánamo Bay in 2002. Part IV discusses the possible ramifications of the Qassim decision. Specifically, subpart IV(a) argues that the district court should decide that the Fifth Amendment applies to Guantánamo Bay detainees, and subpart IV(b) contends that the district court should institute procedures similar to the Classified Information Procedures Act16 in Guantanamo Bay detainee habeas cases, and subpart IV(c) details the consequences of the Ali decision for Guantánamo Bay detainee rights. Finally, Part V addresses the possible implications of Qassim. Specifically, subpart V(a) discusses that the issue of Guantánamo Bay detainee due process rights is ripe for Supreme Court review, and subpart V(b) analyzes what may happen if the Supreme Court takes up the issue.

To read this Note, click here: Are There Rights in Guantánamo Bay: The Great Writ Rings Hallow.

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