Jacob Levy asks me this. My tentative answer is that I don’t think this should matter that much — to me, the important questions are whether the detainees are U.S. citizens, and whether they were detained in military operations in a theatre of combat. If both are satisfied, then I think there’s a strong case for leaving this to military and executive determination, not to civilian judicial determination.
Nonetheless, historically the place of detention has seemed to be important (as Johnson v. Eisentrager stressed), possibly because of the historical understanding of the territorial jurisdiction of the courts to which a habeas petition was presented. As a matter of first principles, one might reject this distinction. But there is something to be said for sticking to precedent, especially when the results it reaches are pretty workable. So if the Court follows the Johnson v. Eisentrager line, and limits the unavailability of habeas to cases where people are detained on foreign soil (not just soil that’s under foreign control — Eisentrager involved a U.S. military base in occupied Germany, which surely was under American control), I won’t be particularly bothered.
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