Out of Gitmo and Into Legal Limbo?

Under the headline, "U.S. Planning Big New Prison in Afghanistan," the NY Times reported today that, well, the U.S. is planning a big new prison in Afghanistan. The prison would hold Taliban an al Qaeda fighters from Afghanistan and elsewhere. It also could be use to hold prisoners now at Gitmo, should the U.S. close the prison there. According to a Pentagon spokesperson quoted in the story: "The driving factor behind this is to ensure that in all instances we are giving the highest standards of treatment and care.”

Perhaps, but let me suggest another possibility: If the government loses the Boumediene case, and the Supreme Court holds that Gitmo detainees are constitutionally entitled to habeas corpus because of the de facto sovereignty the U.S. exercises over Gitmo, the only way for the government to hold foreign captives without risking interference by a civilian court would be to hold them in a facility that is unambiguously located in the territory of a foreign sovereign. Hmmm.

Posted by Mike Dorf