In the Boumediene vs Bush case [pdf] the US executive argued that the constitution was not a blanket document which inhibited the executive's operation. The constitution, it as argued, was limited in application by territoriality and citizenship.
The prisoners were placed in Guantanamo Bay, which is Cuban territory, in order to place the executive's action in a grey area of constitutionality. The one American citizen that was caught in Afghanistan was quickly given a civil trial; leaving non-citizens in Guantanamo. The Bush Administration argued that the constitution did not apply as it was non-American territory and non-citizens; consequently those detained had no political rights and the were no prohibitions on executive action.
To constitutional liberalism and republicanism this is a repugnant argument as it is the enunciation of a state of exception within a constitutional system. The US Supreme Court found that the Bush Administration's argument was repugnant to common law, past court decisions and existing constitutional practice.
The Government's sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo's political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government's view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation's basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is."The US Supreme Court's ruling places the constitution as a restriction on any government action and that constitution is not bounded in its application by either territory or citizenship.
