Rasmusen Weblog

First, the law. No one actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them such as the Geneva Convention, whether those rights are binding in federal court. We know from the Supreme Court's decision last summer in Rasul v. Bush that the federal courts have jurisdiction to consider the question, but we just don't know what the answer is. Why is that? It's because there are surprisingly few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here--cases that plausibly might include United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager --- are generally too splintered, unsatisfying, factually different, and (in some cases) too dated to tell us a lot. No one really knows how the courts (and the Court) are going to answer these questions. If you take the Holmesian view that law consists of "prophecies of what the courts will do in fact", right now this area of law is a big question mark.