Functionalism’s Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene v. Bush, and Al Maqaleh v. Gates

December 1, 2012

The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of the Constitution to habeas petitions by detainees at Guantanamo Bay Naval Base in Cuba would turn on “functionalist” factors. Justice Kennedy, writing for the majority, ultimately concluded that the lack of adequate process, the site of detention, and the lack of practical obstacles weighed in favor of applying the Suspension Clause to the detainees’ habeas petitions. Two years later, in Al Maqaleh v. Gates, a panel of the D.C. Circuit employed the Boumediene factors but held that they weighed against applying the Suspension Clause to the habeas petitions of similar detainees imprisoned at Bagram Air Force Base in Afghanistan.

This Note argues that Justice Kennedy’s functionalist test sits at the intersection of two constitutional theories: extraterritoriality and military necessity. Utilizing Justice Kennedy’s highly subjective balancing test, the D.C. Circuit was able invoke the power of military necessity by focusing on the fact that Bagram was located in an “active theater of war.” This allowed the D.C. Circuit to sidestep the obvious similarities between the Guantanamo and Bagram detainees and to clash with and undermine Boumediene. Ultimately, this Note concludes that for Justice Kennedy’s functionalism to remain viable it must purge the influence of military necessity and reformulate or strike the “active theater of war” language from its balancing test.

December 2012

No. 3