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

Abstract: 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 discuss the constitutional status of Guantanamo as a nonsovereign territory subject to complete U.S. territorial jurisdiction, the extraterritorial application of fundamental due process rights, and the availability of federal habeas corpus to foreign nationals detained at Guantanamo. These three issues figured prominently in the D.C. Circuit panel decision that the Supreme Court agreed to review, and they are likely to inform both the Supreme Court's judgment and the course of future proceedings.