



























Hymowitz Manuscript: Law Journal: Volume 12


Brandeis University Law Journal            2024-2025, Volume 12 

A Debate Decided: Civil Liberties for Guantanamo Bay 
Detainees 

Lanie Hymowitz1 
As of January 2025, the infamous detention camp at the 
Guantanamo Bay Naval Base remains open and operational. 
This article provides a historical overview of how “Gitmo” and 
its unique jurisdictional standing came to be. Particular 
attention is paid to statutory and judicial developments 
following the 9/11 attacks during George W. Bush’s presidency 
and the launching of the Administration’s War on Terror. These 
measures sanctioned the detention of individuals at 
Guantanamo Bay, with few opportunities to pursue legal 
recourse for the potentially extralegal circumstances of their 
imprisonment. 
 
Introduction 
The legal tug-of-war between ensuring national security and 
the free exercise of civil liberties in the United States is as old 
as American jurisprudence itself. This debate reached a degree 
of unparalleled vigor in light of the September 11th attacks, 
when the promise of domestic safety seemed especially 
uncertain. In response to this uncertainty and fear, a military 
prison in Guantanamo Bay, Cuba, opened for the purpose of 
detaining suspected terrorists. The prison would ultimately 
cause the three branches of the federal government to confront 
the quintessential American debate over national security and 
civil liberties time and again throughout the 2000s. 

The Guantanamo Bay detention camp was, and 
remains, an embodiment of the forceful stance the United 
States government takes to combat perceived international 
threats in the prolonged “War on Terror.”2 It is the very 

2 The “Global War on Terrorism” is an international military campaign by 
the United States against militant Islamist groups, primarily from 2001 to 
2021, with the U.S. withdrawal from Afghanistan. This article will focus on 

1 Brandeis University, Class of 2026. 

 
 

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foundations of the Guantanamo Bay Naval Base and 
subsequent military prison that engorge the executive branch 
with expansive powers over national security. The 1934 
Cuban-American Relations Treaty and the Authorization for 
Use of Military Force Resolution blur the lines of both 
Guantanamo’s sovereignty and the limitations on executive 
power respectively. The Supreme Court heard multiple cases 
concerning detainee rights during the administration of 
President George W. Bush. Though the Supreme Court 
generally ruled in favor of protected legal rights for 
Guantanamo detainees, the response from Congress tended to 
assert vigorous security measures, even if such actions 
countered the views of the Supreme Court. The disagreements 
between the executive and legislative branch against the 
judicial branch represents limited effectual justice for 
Guantanamo detainees. Post-9/11 America’s proclivity for 
fervent executive action devalued the civil liberties of 
detainees, which I argue allowed for abuses of justice. 

 
Cuba-United States Relations in the Early 20th Century 

The origins of Guantanamo Bay precede 9/11, dating 
back to the era of early American imperialism. Following the 
Spanish-American War in 1898, Cuba was subject to American 
military occupation. Under these colonial pressures, the Cuban 
government incorporated the Platt Amendment into the Cuban 
constitution in 1901.3 The Platt Amendment functioned as an 
exchange between the United States and Cuba, with the United 
States affording Cuba a greater degree of sovereignty in 
exchange for provisions that would permit continued American 
presence. Section VII of Platt mandated that the Cuban 
government “sell or lease to the United States lands necessary 
for coaling or naval stations…to be agreed upon with the 

3 Jana K. Lipman, Guantanamo: A Working-Class History Between Empire 
& Revolution, 23 (2008). 

the War on Terror as it unfolded during the presidency of George W. Bush 
(2001-2009). 

 
 

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President of the United States,” giving the United States 
President oversight over a portion of Cuban territory, to be 
used at their discretion.4 This stipulation was fortified by a 
1903 treaty, which was accompanied by a lease agreement 
between the two countries. Article III of the 1903 lease states 
that the, “United States recognizes the continuance of the 
ultimate sovereignty of the Republic of Cuba,” yet, “the United 
States shall exercise complete jurisdiction and control” over the 
naval base.5 The idea of what “ultimate sovereignty” means for 
Cuba is unclear, as it seems to stand in direct contradiction to 
the United States exerting complete control over the same 
portion of land. The “legal invention” of ultimate sovereignty 
illustrates that actual Cuban authority over Guantanamo Bay 
was weak in comparison to the robust power of the United 
States in the region.6 Effectively, Platt and the 1903 agreements 
fundamentally entangled the two states thenceforth. 

The Platt Amendment was repealed by President 
Franklin Delano Roosevelt in 1934 as part of Roosevelt’s 
“Good Neighbor” international policies, framed as a departure 
from colonialism in Latin America.7 Platt, as well as the 1903 
treaty, were replaced with the Cuban-American Treaty of 
Relations in 1934. While other provisions of Platt were 
nullified, the new treaty fortified the guarantee of a naval base 
through a lease agreement which remains the governing 
language regarding the status of Guantanamo Bay.8 The treaty 
prohibited Cuba from interfering with the base, stating “[s]o 
long as the United States of America shall not abandon the said 
naval station of Guantanamo…the station shall continue to 
have the territorial area that it now has.”9 In effect, the treaty 

9 Cuban-American Treaty of Relations, 48 Stat. 1682 (1934) § III. 
8 Id.  

7 President Franklin D. Roosevelt, First Inaugural Address (Mar. 4, 1933), 
transcript available at The Avalon Project. 

6 Lipman, supra note 3 at 24. 

5 Agreement Between the United States and Cuba for the Lease of Lands for 
Coaling and Naval stations (1903) § III. 

4 Platt Amendment, 31 Stat. 895 (1901) § VII; Lipman, supra note 3 at 23. 

 
 

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gave the United States military the power to continue its 
activities in Guantanamo Bay, irrespective of the desires of the 
Cuban government. While the United States ostensibly 
recognized Cuba had “ultimate sovereignty” over Guantanamo 
Bay, it was evident that the United States could freely use the 
base for its own purposes. 

The Cuban-American Treaty of 1934 carved out a legal 
loophole for American presidents and the military. Despite the 
letter of the law holding that Cuba was leasing the land to the 
United States, America effectively owned Guantanamo Bay.10 
As such, the United States could reasonably deny having 
sovereignty over the area while simultaneously carrying out 
any government operations deemed necessary. The lack of a 
formal “check” on American actions in the Guantanamo Bay 
Naval Base would thus ensnare the territory in what legal 
scholars have dubbed a “legal black hole.”11 
 
Cuba-United States Relations in the Early 20th Century 

The legal foundation for using the base as a detention 
camp began with the Authorization of Use of Military Force of 
2001 (AUMF), a joint resolution passed by Congress within a 
week of the September 11th attacks.12 The resolution conferred 
upon the President the authority to “use all necessary and 
appropriate force against those nations, organizations, or 
persons he determines planned, authorized, committed, or 
aided the terrorist attacks that occurred on September 11, 
2001” to ensure national security to the utmost degree.13 The 
broad language of the resolution, which vaguely defined 
“force,” gave President George W. Bush and subsequent 
presidents an immeasurable arsenal of powers to thwart 
suspected terrorist threats. 

13 Authorization for Use of Military Force, 115 Stat. 224 (2001) § II. 

12 Michael C. Dorf, The Detention and Trial of Enemy Combatants: A 
Drama in Three Branches, 122 Pol. Sci. Q. 47 (2007). 

11 Amy Kaplan, Where Is Guantánamo?, 57 Am. Q. 831, 831–58 (2005). 
10 Lipman, supra note 3 at 28.  

 
 

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The AUMF and the Cuban-American Treaty of 
Relations of 1934 work in synchrony to diminish the boundary 
between the free exercise of civil liberties and the exertion of 
government authority. Acting as the launching pad for 
authoritative government action to fight the War on Terror, the 
AUMF, is amplified by the 1934 Treaty. As discussed earlier, 
the sovereignty of Guantanamo Bay outlined in the 1934 
Treaty allowed the United States to deny legal responsibility 
through a supposed lack of jurisdiction over the naval base. 
This prospect was made all the more perilous by an executive 
endowed with nearly unchecked wartime powers by the 
AUMF.14 

The robustness of executive power during the “War on 
Terror” was further exacerbated by President Bush’s military 
order, “Detention, Treatment and Trial of Certain Non-Citizens 
in the War Against Terrorism,” issued in November of 2001.15 
President Bush declared that if “there is reason to believe” a 
captured individual has acted with or aided a terrorist cause, 
the individual would be detained in a location selected by the 
Secretary of Defense and tried by a military commission.16 The 
order neglects to require a thorough review before an 
individual is detained, as grounds for detention can be based 
upon mere suspicion. Moreover, the order begins by stating 
that the authority to make such an order is found in “the 
Constitution and…the Authorization for Use of Military Force 
Joint Resolution.”17 This military order extended the AUMF to 
apply to operations in Guantanamo Bay, as “necessary force” 
meant that government authorities (in their view) did not need 
to provide a solid rationale for an individual’s detention in the 

17 Id. 

16 Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). 

15A military order, similar to an executive order, is a directive by the 
President of the United States that dictates actions of armed forces 
personnel. 

14 Lisa Hajjar, Guantánamo’s Legacy, 19 Ann. Rev. L. & Soc. Sci. 58 
(2023). 

 
 

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prison. Thus, the government created an avenue to sweepingly 
deny the Fifth Amendment right of due process to detainees. 

The first prisoners detained at Guantanamo Bay arrived 
at the base in January 2002. These prisoners were described by 
General Michael R. Lenhert, the first commandant of the 
prison, as the “worst of the worst,” perhaps to justify the 
treatment that was to follow.18 The Bush administration aimed 
to treat Guantanamo Bay as a “battle lab”; information would 
be extracted from these detainees that would inform the 
American government’s strategy in the War on Terror.19 
Potential obstacles to the process of extracting information 
from prisoners–—such as prohibitions on torture–—were 
rebuffed by President Bush in a confidential memo the 
following February. The memorandum, titled “Humane 
Treatment of Taliban and al-Qaeda Detainees,” stated that, 
“none of the provisions of [The Geneva Conventions] apply to 
our conflict with al-Qaeda.”20 The Bush administration’s 
rationale was that the Geneva Conventions of 1949 applied to 
“high contracting parties,” or countries that agreed to Geneva 
protocols. Press Secretary Ari Fleischer claimed that as an 
international organization that is not recognized as a governing 
authority, al-Qaeda members, “are not covered by the Geneva 
Convention, and are not entitled to POW [Prisoner of War] 
status.”21 Per the Third Geneva Convention, POW status 
affords an individual the right to be “treated humanely in all 
circumstances.”22 By this reasoning, even if a person’s 

22 Protected Persons: Prisoners of War and Detainees, Int’l Comm. of the 
Red Cross, 

21 Statement by the Press Secretary on the Geneva Convention (Feb. 7, 
2003) (statement of Ari Fleischer). 

20 Memorandum from President George W. Bush to the Vice Pres., Sec. of 
State and Def., Att’y Gen., Chief of Staff to the Pres., Dir. of Central 
Intelligence, Ass’t to the Pres. for Nat. Sec. Aff’s, and Chair of the Joint 
Chefs of Staff, regarding the Humane Treatment of Taliban and al-Qaeda 
Detainees, § 2(a) (Feb. 7, 2002). 

19 Id.  
18 Hajjar, supra note 14 at 58. 

 
 

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detention in Guantanamo Bay proves gravely unjust, and 
therefore inhumane, a detainee was not protected by Geneva 
and had little standing to challenge their detention. This 
assertion functions as a way for Guantanamo Bay detainees to 
have as little legal protection as possible.  
 
The Fight for Due Process for Guantanamo Bay Detainees 

The central infractions of this newly applied “law of 
war” concerned the right of detainees to question their 
detention, and to assert their rights of due process, rights that 
could feasibly be overridden based on the Cuban-American 
Treaty and the AUMF. Changes regarding the legal process of 
Guantanamo Bay would be primarily derived from a 
back-and-forth between the Supreme Court and Congress. The 
first challenges to Guantanamo would come before the 
Supreme Court in 2004 from Hamdi v. Rumsfeld and Rasul v. 
Bush, concerning the plaintiffs’ right to habeas corpus, the 
right to challenge their imprisonment.23 

Yaser Hamdi, the plaintiff in Hamdi v. Rumsfeld, was an 
American citizen captured in Afghanistan in 2001. Due to his 
citizenship, Hamdi had the explicit right to question his 
detention under the Fifth Amendment and thus, the question 
squarely before the Supreme Court was whether his detention 
violated his right to due process. The plurality decision 
authored by Associate Justice Sandra Day O’Connor would 
hold that despite his status as an “enemy combatant,” the Fifth 
Amendment gave Hamdi the right to be heard by a neutral 
decision-maker.24 The provisions of the AUMF, and the 
subsequent military order that authorized the detention camp, 
had been the legal basis to deny procedural due process for 
detainees. Although the plurality disagreed with this reasoning, 

24 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  

23 Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New 
Global Detention System, 4 (2011). 

https://www.icrc.org/en/law-and-policy/protected-persons-prisoners-war-an
d-detainees.  

 
 

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the opinion did not challenge the legality of the AUMF; 
instead, it prescribed additional actions to be taken, with the 
AUMF’s framework remaining in place. 

Associate Justice David Souter, however, challenged 
the ethics of the AUMF in a concurring opinion. Souter 
claimed that “the World War II internment was thus ordered 
under the same Presidential power invoked here and the intent 
to bar a repetition goes to the action taken and authority 
claimed here.”25 In making the damning comparison of the 
powers of the AUMF to the military orders that called for the 
internment of Japanese-Americans during World War II, Souter 
shed light on the profound scope of presidential power under 
the resolution. So long as the AUMF remains in place, as the 
plurality opinion asserted, egregious deprivations of civil 
liberties, akin to those that occurred during Japanese 
internment, are enabled at Guantanamo Bay.  

While Hamdi concerned constitutional interpretation, in 
Rasul v. Bush, Guantanamo’s complex sovereignty and 
governing documents also played a key role. The case’s 
numerous plaintiffs held citizenship from England, Australia, 
and Kuwait, and filed federal suits stating that they were not 
granted a hearing or access to counsel before their detainment. 
The District Court for the District of Columbia, and the 
appellate court, held that the plaintiffs were effectively filing 
writs of habeas corpus.26 The District Court drew upon the 
1950 case Johnson v. Eisentrager for its reasoning, a case that 
concerned German war criminals held in an American-operated 
prison in Germany. The majority in Eisentrager held that, 
“nonresident enemy aliens, captured and imprisoned abroad, 
have no right to a writ of habeas corpus in a court of the United 
States.”27 Thus, the District Court’s ruling was based on the 
assumption that Guantanamo Bay is “abroad” relative to the 

27 Johnson v. Eisentrager, 339 U.S. 763 (1950). 
26 Rasul v. Bush, 542 U.S. 466 (2004). 

25 Id., at 600 (Souter, J., concurring in part, dissenting in part, and 
concurring in judgment). 

 
 

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United States, and therefore non-American citizens detained at 
Guantanamo Bay did not have a right to habeas corpus.  

As opposed to Eisentrager, the Supreme Court’s 
majority opinion in Rasul relied on Braden v. 30th Judicial 
Circuit Court of Kentucky (1973). This case extended writs of 
habeas corpus to individuals, should their legal custodian be 
under the jurisdiction of the United States.28 The majority 
reasoned that because the Department of Defense was under 
United States jurisdiction, claims made by foreign nationals on 
their detention could be heard, though the Court held that Cuba 
still retained “ultimate sovereignty” over Guantanamo.29 While 
the majority simply looked at laws in place surrounding 
Guantanamo’s sovereignty, Justice Antonin Scalia’s dissent 
demonstrated how ideas of sovereignty put forth in the 
Cuban-American Treaty of 1934 remained up for 
interpretation.  

Justice Scalia was a proponent of originalism, a legal 
philosophy concerned with understanding the original intention 
and text of law. Scalia concluded that the 1934 treaty did not 
“render Guantanamo Bay the sovereign territory of the United 
States” and that Guantanamo had “never before been thought 
to be within [American] jurisdiction.”30 Despite the United 
States exercising significant control over the territory in the 
2000s, on the basis of the Cuban-American Treaty, Scalia 
adamantly denied American jurisdiction over Cuba. Scalia 
seemed to recognize the “legal black hole” the treaty created, 
suggesting the United States could avoid this predicament by 
creating a separate district court for Guantanamo Bay, as was 
done with the Panama Canal Zone.31 The government’s 
avoidance of confronting the treaty’s loophole indicates that the 
treaty was perceived as a tool for enabling more aggressive 

31 Id.  
30 Id., at 502 (Scalia, J., dissenting).  
29 Rasul v. Bush, supra note 26. 
28 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). 

 
 

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security measures by denying jurisdiction, and thus detainee 
rights. 

Scalia’s reasoning would lend legal credence for 
Congress to pass the Detainee Treatment Act in 2005.32 The 
original text of the Detainee Treatment Act (DTA) stated that 
except in certain circumstances (left undefined), “no court, 
justice, or judge shall have jurisdiction to hear or consider…an 
application for a writ of habeas corpus filed by or on behalf of 
an alien detained by the Department of Defense at Guantanamo 
Bay.”33 The DTA appeared to circumvent the Rasul ruling, 
reflecting on the question of jurisdiction for Guantanamo Bay, 
which in part relied on the interpretation of the 
Cuban-American Treaty. As the passage of the AUMF 
illuminated, increasing executive authority was viewed as a 
reliable countermeasure against terror in the 2000s. The DTA’s 
passage illustrates how ambiguity over Guantanamo’s 
sovereignty was leveraged to deny habeas corpus and 
strengthen executive power, even amid calls for individual 
rights, as seen in Rasul. 

 
Congressional and Judicial Disagreements over 
Guantanamo Continue 

The Supreme Court would hear two more high-profile 
cases, Hamdan v. Rumsfeld (2006) and Boumediene v. Bush 
(2008), both concerning the right to question one’s detention 
status at Guantanamo Bay. Both cases further exemplified the 
battle between the Supreme Court and the executive and 
legislative branches, first demonstrated by Rasul and the 
subsequent passage of the DTA. A pattern emerged wherein 
Congress would pass a law regarding the legal processes of 
Guantanamo Bay, the President would support and sign the bill 
into law, and the Supreme Court would partially reject the law. 

33 Detainee Treatment Act, Pub. L. No. 109–148, §§ 1001–1006, 119 Stat. 
2680, 2739–44 (2005) (codified in scattered sections of 10, 28, & 42 
U.S.C.). 

32 Hajjar, supra note 14 at 60. 

 
 

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This would then cause Congress to respond with a different 
bill, thereby perpetuating a cycle in the name of national 
security. 
         In Hamdan, the Supreme Court reviewed the Detainee 
Treatment Act and addressed the military commissions being 
used to try suspected terrorists.34 These commissions were first 
discussed in President Bush’s military order in November of 
2001 before being more concretely defined by Military 
Commission Order No. 1 in March of 2002.35 These 
commissions differed from ordinary courts of law in the United 
States, as they permitted hearsay testimony and evidence 
obtained through coercion; all in the effort to gather higher 
volumes of evidence.36 Salim Ahmed Hamdan’s legal team 
argued that his military commission violated both the Uniform 
Code of Military Justice, an American code, and the Geneva 
Conventions.37 

Hamdan split the court, with Justice Stevens’ majority 
opinion joined only by the liberal wing of the court, and only in 
part. The majority rejected the government’s argument that 
Guantanamo Bay existed outside of the scope of Geneva, 
preventing further legal insulation of the territory. Crucially, 
the majority also held that “neither the AUMF nor the DTA can 
be read to provide specific, overriding authorization for the 
commission convened to try Hamdan.”38 In doing so, the 
majority defined a clear limit on the AUMF, something that 
had not been done in their earlier decisions. While this limit 
applies to the trials of detainees, it did not include a limitation 
on the circumstances or grounds of a detainee’s detention. In 
this area, the AUMF continued to provide room for 
exploitation. Additionally, Stevens’ opinion stated that the 

38 Id.  
37 Hamdan v. Rumsfeld, supra note 34. 
36 Id.  

35 Ida L. Bostian, One Step Forward, Two Steps Back: Hamdan v. Rumsfeld 
and the Military Commissions Act of 2006, 5 Santa Clara J. Int’l L. 219 
(2006).  

34 Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 

 
 

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AUMF “acknowledge[s] a general Presidential authority to 
convene military commissions,” acknowledging an inherent 
legitimacy to military commissions and leaving open the 
possibility for an altered form of these commissions to 
continue.39 

With the publication of the Hamdan decision, a familiar 
pattern reemerged; Congress passed the Military Commissions 
Act of 2006 (MCA) as a circumvention of the Supreme Court’s 
stance.40 The MCA both forbid any detainees subject to a 
military commission from “[invoking] the Geneva Conventions 
as a source of rights” and precluded legal actors in the United 
States from asserting jurisdiction “to hear or consider an 
application for a writ of habeas corpus filed by or on behalf of 
an alien detained by the United States.”41 

The MCA would be challenged in Boumediene v. Bush, 
the last notable Guantanamo case adjudicated under the Bush 
administration. Boumediene had multiple “moving parts”; the 
constitutionality of the MCA, as well as continued 
considerations of the application of the Fifth Amendment and 
the Geneva Conventions in military commissions.42 Despite its 
many legal complexities, Boumediene would ultimately boil 
down to a simple conclusion: the majority held that Section 7 
of the MCA, which denied a court’s ability to hear a writ of 
habeas corpus, was an unconstitutional suspension. The 
majority unequivocally held that “Petitioners have the 
constitutional privilege of habeas corpus.”43 Boumediene 
addressed the two-pronged issue of sovereignty and criminal 
rights by upholding the right of habeas corpus in the face of 
encroachment by the executive branch, even while 

43 Id. 
42 Boumediene v. Bush, 553 U.S. 723 (2008). 

41 U.S. Congress, House, Military Commissions Act of 2006, H.R. 6166, 
109th Cong. (2006). 

40 Lisa Hajjar, The Counterterrorism War Paradigm versus International 
Humanitarian Law: The Legal Contradictions and Global Consequences of 
the US ‘War on Terror’, 44 Law & Soc. Inquiry 935 (2019). 

39 Id.  

 
 

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acknowledging that Guantanamo is “outside sovereign U.S. 
territory.”44 Despite the Boumediene holding, habeas corpus 
cases continued to face challenges. Under the Obama 
administration, “the DC Circuit Court overturned every 
[detainee] victory and instructed lower-court judges to accept 
the reliability and accuracy of government evidence.”45 The 
“debate” over national security measures was firmly decided, 
as it had been for years. From the passage of the AUMF to the 
persistent obstacles against habeas corpus cases, the United 
States government views Guantanamo Bay prisoners as a mere 
tool for asserting executive and military power, rather than 
human beings entitled to basic legal rights. 
 
Concluding Thoughts 

The continued denial of detainee rights lies in the 
structural integrity of Guantanamo. The AUMF carved out 
broad warmaking powers to fight the War on Terror, which the 
executive and legislative branch was unwilling to relinquish. 
The story of Guantanamo Bay is not necessarily unique, but an 
example of how the branches of government may interplay in a 
battle between civil liberties and national security. The 
September 11 attacks prompted the legislative and executive 
branches to create and execute measures to bolster national 
security, such as the AUMF and the military orders authorizing 
Guantanamo’s creation. The Supreme Court then “checked” the 
power of these branches and the powers they exercised, first 
through Hamdi and up to Boumediene. There is a clear 
separation of powers in the reactionary nature of Congress to 
the decisions of the Supreme Court, but I argue that the 
tug-of-war surrounding Guantanamo Bay resulted in power 
that was divided unequally among the branches. The rulings of 
Hamdi, Rasul, Hamdan, and Boumediene all supported a 
bolstering of detainee rights to a certain extent, but in each 
instance, Congress was able to usurp, at least in part, these 

45 Hajjar, supra note 14 at 65.  
44 Id.  

 
 

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decisions. The firm commitment to the interest of national 
security left detainees without justice. 

  The lesson to be learned from the early years of 
Guantanamo Bay is that the mechanisms that enable injustice 
may not be discernible from a surface level viewing. The lack 
of civil rights for detainees was not just a matter of the 
presidential administration, as habeas petitions were 
consistently denied under a Democratic president. The 
problems that must be addressed is that the framework of 
Guantanamo itself must be reexamined in today’s context, but 
perhaps even more significant, is the imbalance of power that 
exists particularly with an engorged executive branch. 

 
 

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