Section 1
Is the U.S. naval base at Guantanamo Bay, Cuba, United States' sovereign territory?

Yes. Guantanamo Bay, Cuba is effectively/entirely controlled by the U.S. military and, thus, it should be considered U.S. sovereign territory - subject to the full protections of the Constitution.

Section 1
Is the U.S. naval base at Guantanamo Bay, Cuba, United States' sovereign territory?

No. This argument is without merit. Summarizing the 1890 Treaty with Cuba, the U.S. may lease Guantanamo Bay, Cuba, for as long as it retains a naval base there. However, ultimate sovereignty over this territory resides with the government of Cuba. It is not U.S. sovereign territory.

Issue #1: Citizen and Alien Distinctions

Yes. The legal distinction between citizen and alien does not apply in this case. Several portions of the Bill of Rights, including the Fourth and Fifth Amendments, protect "persons" and not just citizens.

Issue #1: Citizen and Alien Distinctions

No. There is a legal distinction between citizens and aliens. The rights and liberties safeguarded by the Constitution are not protected to the same extent for aliens as they are for citizens.

Issue #2: Friendly and Enemy Alien Distinction

Yes. As stated above, just as several portions of the Bill of Rights refer to “persons” and make no distinction between citizens and aliens, they also do not make any distinctions between friendly and enemy aliens.

Issue #2: Friendly and Enemy Alien Distinction

No. There is a distinction between friendly aliens and enemy aliens. Friendly aliens (persons who owe allegiance to countries with which the United States has normal diplomatic relations) have historically been able to avail themselves of this country's courts while enemy aliens (persons who owe allegiance to countries with which the United States is at war) do not.

Issue #3: Enemies' Use of the Courts

Yes. Fundamental fairness requires that persons accused of war crimes and tried by the U.S. military be given the full protections of the Constitution. Otherwise, who checks the military? What if the military courts were simply kangaroo courts? Would their verdicts still legally stand?

Issue #3: Enemies' Use of the Courts

No. Is it logical to allow the enemies of this nation the use of its courts when 1) this could be of benefit to the enemy, i.e. an enemy alien could win a monetary award against our government, and 2) there is no guarantee (or expectation) that the enemy will react in kind to our aliens in its territory? Indeed, the enemy in this case is not fighting for a particular nation.

Issue #4: Eisentrager and War Criminals

Yes. Unlike Eisentrager, the detainees in this case are not war criminals. They were not given a military trial to determine their guilt or innocence. They have not been accused of war crimes nor have they been labeled prisoners of war. By labeling them as enemy combatants, the government argues that they are beyond the reach of the Constitution. The safeguards of the Constitution were enacted for the specific purpose of prohibiting the types of actions the government now argues should be condoned – i.e., arbitrary arrest and indefinite imprisonment without recourse to the courts. Such a notion as this is absolutely foreign to this nation's jurisprudence.

Issue #4: Eisentrager and War Criminals

No. Regrettably, the United States is now fighting a new type of war. No longer is it easy to clearly identify its enemies for they are no longer sovereign nations but individual terrorists. Therefore, individuals captured abroad and deemed dangerous to U.S. interests must be given a status different from either prisoners of war or war criminals, i.e., detainees – at least until a suitable time as their cases can be appropriately reviewed. The facts in this situation may be slightly different from those in Eisentrager, but the principle is the same, namely, the U.S. civilian courts have no authority over the affairs of persons who, other than their actions in war, have had nothing to do with the United States.

Issue #5: Overruling Precedents

Yes. Even if the Court determines that the facts in Eisentrager are identical with the facts in this case, the Court should overrule Eisentrager. Fundamental fairness demands that persons being detained have access to the courts, via a petition for a writ of habeas corpus, to challenge the legality of their confinement. This is especially true when, as in this case, the detainees are left in legal limbo, neither being tried for crimes under civilian law nor being labeled prisoners of war for purposes of military and international law.

Issue #5: Overruling Precedents

No. Precedents should not be overruled lightly. The U.S. military has relied upon the Eisentrager precedent for nearly fifty years. It was upon this precedent that it may very well have decided to house the detainees at Guantanamo Bay, Cuba – on foreign soil. To overrule Eisentrager now would be to frustrate the military's attempt to wage a successful War on Terror and to throw into confusion the current state of military law.

Section 4
Do the federal courts have the jurisdiction to grant writs of habeas corpus to foreign detainees at Guantanamo Bay, Cuba, who challenge the legality of their confinement? More broadly, should the rights and liberties in the Constitution follow the U.S. military presence wherever it is?

Issue #1: Need for Effective Military Operations

Yes. Even in wartime, the U.S. military is subject to the constraints of the Constitution. Indeed, the Constitution gives the military its existence. Since the military is a part of the federal government, the protections of the Bill of Rights apply to it as well. Constitutional protections should follow the flag.

Section 4
Do the federal courts have the jurisdiction to grant writs of habeas corpus to foreign detainees at Guantanamo Bay, Cuba, who challenge the legality of their confinement? More broadly, should the rights and liberties in the Constitution follow the U.S. military presence wherever it is?

Issue #1: Need for Effective Military Operations

No. In order for the military to be efficient, it must be allowed to conduct its operations, including war crimes prosecutions, unhindered by the oversight of U.S. civilian courts.

Issue #2: Suspending Habeas Corpus

Yes. Even assuming that the government's actions, i.e., detaining foreign nationals at Guantanamo Bay, Cuba is justified by the necessities of war, the Constitution provides a proper procedure for this type of action, a procedure that was not followed in this case – i.e., Article I, Section 9 gives Congress the authority to suspend the writ of habeas corpus during national crises.

Issue #2: Suspending Habeas Corpus

No. The Authorization for the Use of Military Force (UMF), a joint resolution of Congress, gives the President the authority to detain individuals under certain circumstances. Therefore, the suspension of habeas corpus is not necessary.

Issue #3: Role of the Courts

Yes. It is argued that the courts should not grant habeas relief because they would be subsequently flooded with habeas petitions. The job of the courts is to protect individuals' rights and liberties and the fact that the courts' caseload may be increased should have absolutely no bearing on this case. Moreover, why should the military not wish to abide by the Constitution, the document which it is fighting to protect and defend?

Issue #3: Role of the Courts

No. If the Court were to grant habeas corpus relief to the detained individuals, the federal civilian courts may be flooded with petitioners from abroad challenging the legality of their imprisonment by the U.S. military; thus, undermining the military's ability to conduct war.