Originally uploaded at SSRN.


This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; most recently, it found support in a European human rights judgment for its conclusion in Lawrence v. Texas that the Constitution forbids criminal punishment of homosexual conduct. This article likewise considers the constitutionality of governmental policy in light of external norms. It thus concludes: first, that U.S. courts have jurisdiction to scrutinize extraterritorial detention; second, that the doctrine of executive deference must yield to judicial duty to protect individual rights; and finally, that alleged conditions of detention and interrogation, as well as the proposal for trial before special tribunals, may violate core guarantees of the U.S. Constitution.