Hastings Constitutional Law Quarterly


Ian Samson


The legal status of and the rights of the persons detained at the United States' facility at Guantdnamo Bay are two of the preeminent questions facing today's legal scholars. The United States initially presented Guantdnamo as a legal netherworld-neither fully within nor exempted from the rule of law. But the Supreme Court's decision in Boumediene v. Bush rejected the government's characterization by deciding that, whatever the legal status of Guantdnamo may be, it certainly is not what the government imagined. This note argues that Boumediene's de jure versus de facto sovereignty distinction applies beyond the writ of habeas corpus and guarantees persons at Guantinamo the full spectrum of constitutional rights normally afforded to pretrial detainees, including the right to bring a Bivens action for violations of those rights. The note does not endeavor to "prove" a hypothetical Bivens claim, but merely demonstrates that, after Boumediene, the government's old arguments should have little traction.