ABSTRACT
Justice Kennedy invoked a 'functional approach' to ascribe Guantanamo an unincorporated territorial status and justify the application of the century-old doctrine of territorial incorporation to the camps. Solicitor General Olson, however, developed at least two mutually constitutive rationales, namely one emphasizing the individual status of Rasul and the other detainees and one focusing on the territorial status of Guantanamo. The case of Rasul v. Bush combined a number of habeas corpus petitions lodged by two British, two Australian, and twelve Kuwaiti citizens detained in Guantanamo Bay for two years. In Hamdan the Court essentially examined whether the military commissions created by the Bush administration to prosecute detainees were lawful within the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions. In Boumediene v. Bush, the Court again sought to temper the Bush administration and Congress Guantanamo laws and policies, but this time it invoked the Constitution.
