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Habeas Corpus after 9/11Confronting America's New Global Detention System$

Jonathan Hafetz

Print publication date: 2011

Print ISBN-13: 9780814737033

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814737033.001.0001

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The Seeds of a Global Constitution

The Seeds of a Global Constitution

(p.101) 6 The Seeds of a Global Constitution
Habeas Corpus after 9/11

Jonathan Hafetz

NYU Press

Abstract and Keywords

This chapter examines the use of habeas corpus to challenge detentions overseas before 9/11 as well as the principles underlying the extraterritorial application of constitutional rights. It begins with a historical overview of the debate over whether the Constitution applied beyond America's borders, especially with regards to the structure of government for newly acquired territories, procedural components of civil and criminal justice, and the issue of slavery. It then considers the question surrounding the extraterritorial application of the Constitution in connection with expanding U.S. law enforcement operations on the high seas and in foreign countries. It also discusses court cases that offered support for the proposition that fundamental constitutional rights applied outside the United States to both citizens and noncitizens.

Keywords:   habeas corpus, detention, 9/11, constitutional rights, Constitution, court cases, citizens, noncitizens, law enforcement, foreign countries

At the time the United States was founded, little thought was given to whether the Constitution applied outside its territory. Instead, the Constitution’s framers focused inward on developing and securing a republican form of government.1 Although they contemplated the possibility of military action overseas, they did not envision the extent to which America’s military power, let alone its political, commercial, and cultural influence, would be projected beyond the country’s shores over the next two centuries. Nor could they foresee how law enforcement would one day have to undertake international operations in areas from narcotics trafficking to global terrorism.

History, however, also provides support for a more expansive vision of the Constitution. The Constitution’s framers were driven by the ideal of protecting individual liberty from arbitrary and lawless government action. Consequently, they established the Bill of Rights to embody what Professor Louis Henkin has called a “universal human rights ideology,” even though that ideology was far from its full realization in 1789 when women, slaves, and non-property-owning males did not share equally in political power or civil society.2 James Madison, for example, insisted that his proposed Bill of Rights “expressly declare the great rights of mankind,” thus implicitly rejecting an “us” versus “them” dichotomy.3 Madison and others also were deeply suspicious of executive power. Having just thrown off the yoke of a king, they wanted to protect against the exercise of monarchical authority in the new system of government that they were creating. Their desire to ensure both individual liberty and checks on government power helped motivate the inclusion of a habeas corpus guarantee in the Constitution as well as limitations on its suspension. They similarly inspired the inclusion of the Bill of Rights, which helped secure such basic protections as the right not to be deprived of life, liberty, or property without due process of law and the right to a speedy trial by jury for alleged crimes.4 None of these protections turned on a person’s citizenship status or location.5

(p.102) The first skirmish between competing visions of the constitutional rights of noncitizens (or “aliens”) took place during the 1790s. The French Revolution and ensuing war in Europe had split America along partisan lines, and the divisions were growing increasingly bitter. The Federalists feared the importation of radical Jacobin ideas and a possible invasion by France. In response to these fears, Congress enacted several measures during John Adams’s administration giving the president broad powers over noncitizens in the United States. The Alien Enemies Act authorized the president to detain and expel aliens who were citizens, subjects, or residents of an enemy nation with which the United States was at war. The so-called Alien Friends Act swept more broadly, authorizing the president to detain or expel any alien he deemed “dangerous to the peace and safety of the United States.”6 A third statute, the Sedition Act, made it a crime to publish “false, scandalous, and malicious writing” against the government or its officials.7

The Alien Friends and Sedition acts provoked heated debate. Leading Federalists who supported the Alien Friends Act argued that members of the social compact (citizens) could define and limit the rights of nonmembers (aliens) who did not enjoy the compact’s protections or benefits. The only protections that aliens could claim, they maintained, were those that the international law of nations afforded.8 On the other side, Jeffersonian Republicans vigorously opposed the acts, condemning them in the Virginia and Kentucky resolutions as unconstitutional.9 As the prominent American jurist and statesman Edward Livingston wrote, “Alien friends … residing among us, are entitled to the protection of our laws, and … during their residence they owe a temporary allegiance to our Government.” If alien friends are accused of violating this allegiance, Livingston added, “the same laws which interpose in the case of a citizen must determine the truth of the accusation, and if found guilty [aliens] are liable to the same punishment.”10 James Madison incorporated these ideas of equal treatment in his 1800 report for the Virginia legislature defending the resolutions. He emphasized the link between an alien’s allegiance to the United States, on the one hand, and his entitlement to the protection of its laws, on the other. That aliens might not be parties to the Constitution as citizens were, Madison said, did not exclude them from its coverage.11 “If aliens had no rights under the Constitution, they might not only be banished,” he wrote, “but even capitally punished, without a jury or the other incidents to a fair trial.”12

The Alien Friends Act expired in 1800, along with the Sedition Act; neither was ever renewed. By contrast, Madison’s belief that constitutional rights protecting individuals from arbitrary and unlawful government action (p.103) do not necessarily depend on an individual’s citizenship or membership in the political community gathered support over time and was later endorsed by the Supreme Court to varying degrees. In the late nineteenth century, in response to an anti-immigrant backlash, the Supreme Court ruled that noncitizens were entitled to equal protection of the law13 and, if accused of a crime, to a jury trial under the Fifth and Sixth Amendments to the Constitution.14 Over time, the Court has also made clear that aliens in the United States are entitled to other constitutional protections as well.15

The separate question of whether the Constitution applied beyond America’s borders first arose in the nineteenth century during the period of westward expansion. The debate centered on the structure of government for newly acquired territories, procedural components of civil and criminal justice, and the hotly contested issue of slavery.16 Those who advocated an approach based on membership in the polity argued that the Constitution was created by the people of the states for the states and therefore did not extend beyond the states.17 But those who espoused a more nationalist vision disagreed. John Marshall, for example, maintained that the Constitution applied throughout the “American empire,” extending to any territory over which the United States exercised sovereign power.18 In a series of decisions before the Civil War, the Supreme Court recognized the Constitution’s applicability to newly acquired western territories,19 as well as to the District of Columbia, where the Constitution had granted Congress full legislative power without conferring statehood.20 Ironically, the most important decision in this regard was the ignominious Scott v. Sandford (the “Dred Scott case”), in which the Court ruled that the Constitution’s Due Process Clause protected a slave owner’s right to his property in the territories.21

When America began to acquire an overseas empire in the late nineteenth century, the courts had to address whether the Constitution applied to U.S. action abroad. In general, courts acknowledged territorial limitations on constitutional rights even when U.S. citizens were in foreign countries but affirmed the application of certain fundamental constitutional rights in the United States’ overseas colonial possessions.

In 1891, for example, the Supreme Court considered the appeal of an American seaman who had been tried and convicted by an American consul in Japan for a murder committed aboard an American ship in a Japanese harbor. The seaman, John M. Ross, filed a habeas corpus petition challenging the conviction following his return to the United States, where he had been brought to serve out his sentence. Ross argued that the trial violated his constitutional rights by denying him a grand jury indictment and a jury trial. (p.104) The Supreme Court rejected his claim. Writing for a unanimous Court in In re Ross, Justice Stephen Johnson Field stated that the Constitution was limited to the United States and “can have no operation in another country.” As a result, he said, the Constitution’s protections extended “only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.”22 Ten years later, the Court upheld the extradition of an American citizen to Cuba to face trial for embezzlement during America’s temporary military occupation of Cuba after the Spanish-American War, even though Cuban law did not guarantee him the same protections as the U.S. Constitution. The Court explained that America’s constitutional guarantees have “no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country.”23

Cases like Ross and Neely were the product of America’s growing empire and expanded military presence in foreign countries. But America also began acquiring new possessions for itself during this period. In 1893, American troops helped overthrow the Hawaiian government and establish a new U.S.-controlled provisional government that paved the way for Hawaii’s annexation five years later.24 In addition, the United States acquired significant parts of Spain’s colonial empire, including Puerto Rico, the Philippines, and Guam following the conclusion of the Spanish-American War. The United States also obtained control over Guantánamo Bay during this period, in exchange for terminating its occupation of Cuba.25 As the United States became an imperial power, questions soon arose over whether and how the United States’ Constitution would apply to its newly acquired territories.

The Supreme Court addressed this question in a series of decisions collectively known as the “Insular Cases.” The first and most important was the Court’s 1901 decision in Downes v. Bidwell.26 Downes involved a duty imposed on oranges imported from Puerto Rico by a merchant in New York, requiring the Court to address whether Congress was free from the constitutional requirement of uniform taxation in Puerto Rico. In assessing the legality of the tax, members of the Court staked out three broadly defined positions. The controlling opinion by Justice Henry Billings Brown, which attracted a plurality but not a majority of the Court, held that Congress was not bound by the Constitution in taxing Puerto Rico. Embracing the logic of the membership approach from the debate over the Alien Friends Act a century earlier, Brown explained that the Constitution was “created by the people of the United States, as a union of States, to be governed solely by representatives of the states.”27 Puerto Rico, he said, was a territory “appurtenant and belonging (p.105) to the United States, but not a part of the United States.”28 While Brown held out the possibility that by legislative action, Congress could extend the benefits of membership to newly acquired territories, the Constitution had no force in those territories until Congress did so.

The elder Justice John Marshall Harlan took the opposite position. He maintained that whenever the United States acquired sovereignty over a territory, the Constitution followed, regardless of that territory’s status. Harlan believed that as “the supreme law of the land,” the Constitution applied “to all peoples, whether of States or territories, who are subject to the authority of the United States.”29 If the United States governed a territory and exercised jurisdiction over it, the Constitution accordingly applied to all the people there, regardless of whether there had been a determination by the political branches to accord statehood to that territory. This view was encapsulated by the popular credo “The Constitution follows the flag.”

The third position, staked out by Justice Edward Douglass White, reflected a compromise. White divided territories into different categories: those that Congress had made part of the United States by either admitting them as states or incorporating them as U.S. territories, and those that Congress had not incorporated. The Constitution’s full protections, he said, applied to admitted or incorporated territories, while “unincorporated territories” held a different status. Although the Constitution applied to all U.S. territories (including unincorporated territories like Puerto Rico), not all of the Constitution’s provisions applied everywhere and at all times. Instead, White explained, the application of a particular constitutional provision to an unincorporated territory required an inquiry “into the situation of the territory and its relation to the United States.”30 White also pointed out that certain constitutional restrictions were of “so fundamental a nature that they cannot be transgressed.”31 White’s view ultimately captured the majority of the Court and served as the basis for a series of decisions in the coming decades that addressed the application of particular constitutional provisions to unincorporated territories.32

The Insular Cases have been criticized for sanctioning racist attitudes toward “native islanders” whom United States considered unable to appreciate American values and institutions.33 The Supreme Court, for example, cited Puerto Rico’s different origins, culture, and language in refusing to extend the constitutional right to a jury trial to the island’s inhabitants.34 But the Insular Cases also embodied the idea that America’s projection of power abroad must be constrained by certain basic constitutional principles. The Insular Cases thus did not hinge the Constitution’s extraterritorial application (p.106) on formal constructs such as citizenship. Instead, they focused on the actual relationship between the United States and the territory in question to determine which constitutional provisions applied under the circumstances.

While the Insular Cases endorsed the extension of constitutional rights beyond America’s shores, they addressed only those territories that the United States possessed and governed. The Supreme Court’s earlier statement in Ross—that the Constitution had no force in foreign territory—still remained on the books. But by the end of World War II, Ross’s strict territoriality rule seemed increasingly archaic. America had become a superpower, with military forces, corporations, and other institutions spread across the world. The type of colonial arrangements that prevailed during the imperialist era of the late nineteenth and early twentieth centuries had given way to other, more subtle forms of control and influence. America’s expanding and enduring global presence, including its growing number of overseas military bases and service members, had created new reasons to extend constitutional protections abroad.35

In 1957, the Supreme Court revisited the question of the Constitution’s application in foreign territory. In Reid v. Covert, two widows of U.S. servicemen challenged the legality of their convictions by courts-martial for murdering their husbands in England and Japan.36 Six justices refused to find that they were bound by In re Ross but divided in their reasoning. Writing for a plurality of four, Justice Hugo Black said that as U.S. citizens and civilians, the defendants could not be subject to court-martial but instead had to be tried by a jury of their peers, as the Fifth and Sixth Amendments to the Constitution required. Black rejected the notion that the Constitution was limited strictly to U.S. territory. “The United States is entirely a creature of the Constitution,” he explained. “Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.”37 Black also rejected the suggestion made in the Insular Cases that judges could limit the Constitution’s applicability to provisions they deemed “fundamental.”38 “When the Government reaches out to punish a citizen who is abroad,” Black said, “the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”39 Building on concepts first articulated by Madison and other framers of the Constitution from the early years of the republic, Black believed that the United States could not subject defendants to its criminal laws while denying them the constitutional protections that accompany enforcement of those laws, simply because they were located in a foreign land.40

(p.107) Justice Felix Frankfurter and the second Justice John Marshall Harlan (the grandson of the elder Justice Harlan from the Insular Cases) each filed concurring opinions. Both agreed that the Constitution was not limited to U.S. territory. But, they said, that does not mean all constitutional protections necessarily apply when the United States acts abroad. Instead, Frankfurter and Harlan advanced a more contextual approach. The question, Harlan explained, was not whether the Constitution applied abroad (for it applied everywhere) but whether the application of a particular constitutional right was “impracticable” or “anomalous” under the circumstances.41 As Harvard Law School professor Gerald Neuman has observed, this approach “held out the possibility of more widespread constitutional protection than had previously been afforded but at the cost of diluting its content.”42 It undercut the idea that citizenship necessarily determined the Constitution’s application abroad, since in many instances it would be no more impracticable or anomalous to apply a particular constitutional protection to an alien than to an American citizen. On the other hand, it suggested that even an American citizen might not always be able to claim the full protections of the Bill of Rights when outside the United States, since the application of particular constitutional provisions would depend on the circumstances.

In subsequent decisions, the Supreme Court extended the Constitution’s jury trial guarantee to civilian dependents of military members overseas prosecuted for noncapital crimes and to civilian employees of the armed forces overseas, again rejecting the idea of strict territorial limitations on constitutional rights.43 Lower courts, in turn, recognized that other constitutional safeguards applied abroad.44 But because these cases involved American citizens, they did not address whether, and to what extent, the Constitution extended to foreign nationals outside the United States—the issue presented in World War II era cases like Eisentrager and Hirota.

The opportunity to address that question instead arose in two types of cases: those involving territories where the United States exercised actual control and jurisdiction but not formal sovereignty; and those involving U.S. law enforcement actions in foreign countries and on the high seas. Although the decisions in these cases did not provide a definitive resolution, they offered further support for the proposition that, at minimum, fundamental constitutional rights applied outside the United States to citizens and noncitizens alike.

After World War II, the United States continued to exercise control over several territories without political sovereignty. In resolving various disputes, federal courts built on the logic of the Insular Cases to find that fundamental (p.108) constitutional rights applied to noncitizens as well as to citizens, even though these territories were not formally part of the United States.

The Panama Canal Zone provides an instructive example. The United States acquired control of the ten-mile-wide Canal Zone in 1903. A treaty between the United States and the new republic of Panama gave the United States permanent, exclusive, and total control but reserved the host state’s ultimate sovereignty over the territory.45 The treaty provided the United States with “all the rights, power and authority within the zone … which the United States would possess and exercise, if it were the sovereign of the territory [of the Canal Zone] … to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.”46 The treaty created a U.S. enclave to serve a strategic national interest: constructing and maintaining a canal across the Isthmus of Panama. The United States exercised jurisdiction over the Canal Zone until 1979, when the Canal Zone was returned to Panama.47

Early on, Congress created a district court in the Canal Zone to hear civil and criminal cases, with review to a federal appeals court.48 Congress later provided for a bill of rights that was modeled on, although not identical to, the Bill of Rights in the U.S. Constitution.49 By the 1940s, both the district court and the appeals court were subjecting U.S. actions and laws in the Canal Zone to scrutiny under the Constitution.50 Emphasizing the United States’ territorial control over the Canal Zone rather than the personal status of the affected individual, judges consistently acknowledged that fundamental constitutional protections, including due process and equal protection under law, applied to both American citizens and foreign nationals.51 As the U.S. Court of Appeals for the Fifth Circuit, the appellate court with jurisdiction over the Canal Zone, explained, “It is the territorial nature of the Canal Zone and not the citizenship of the defendant that is dispositive.”52

Judicial decisions arising from the United States’ governance of the Trust Territory of the Pacific Islands in Micronesia reflected the same principle: that fundamental constitutional guarantees accompanied U.S. territorial control, regardless of the nature of the political arrangement under which that control was exercised. After liberating the islands from Japanese control during World War II, the United States sought to retain strategic control over Micronesia. Here, the operative agreement took the form of a special trusteeship granting the United States “full powers of administration, legislation, and jurisdiction over the Territory” without ceding formal sovereignty: a degree of control similar to the Canal Zone and Guantánamo Bay.53 The U.S. Department of the Interior, which assumed control over Micronesia from (p.109) the U.S. Navy in 1951, exercised executive and legislative authority and also appointed judges for the trust territory, with review in the federal court of appeals in Washington, D.C.54 In 1986, the trusteeship formally ended: the Northern Mariana Islands became a U.S. commonwealth, and three other islands chose to become independent while remaining in free association with the United States.55

Before the trusteeship ended, courts consistently ruled that fundamental constitutional rights applied both to U.S. citizens and to noncitizens in the Trust Territory, even though the territory was a foreign country under U.S. administration. In one case, for example, the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C., which had jurisdiction over cases from the Trust Territory, considered a challenge brought by an inhabitant to a valuation of his property made to compensate him for its destruction. The appeals court ruled that the locally based Micronesian Claims Commission, established to adjudicate such claims, was bound by the constitutional requirements of due process.56 Applying the reasoning of the Insular Cases, the court found that fundamental constitutional rights applied equally to foreign nationals in the Trust Territory because they were no less subject to U.S. governing power than the American citizens there. “It is settled,” the court said, that “there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law.”57 Other courts reached the same conclusion in adjudicating legal challenges, finding, for example, that inhabitants of the Marshall Islands dispossessed by nuclear weapons testing at Bikini Atoll and Enewetak Atoll were covered by the Constitution’s takings clause, which prohibits the taking of private property for public use without just compensation.58

The question of the Constitution’s application to noncitizens in nonsovereign U.S. territory also arose at the U.S. Naval Base at Guantánamo Bay during the early 1990s when the United States began using Guantánamo to detain asylum seekers from Haiti intercepted on the high seas. Those whom the United States did not summarily return to Haiti, from where they were fleeing persecution, were brought to Guantánamo and held in newly created “tent cities” encircled by rolls of razor-barbed wire. The asylum seekers—men, women, and children—were denied attorneys and access to U.S. courts. Later, when thousands were intercepted fleeing Cuba in the mid-1990s, the United States took them to Guantánamo and confined them behind barbed wire in “safe-haven” camps. The United States also began erecting similar camps elsewhere in the region, including in the Panama Canal Zone.59

(p.110) Lawsuits challenging America’s interdiction policy were filed in Florida and New York. Since the asylum seekers were foreign nationals seized and held outside the United States, the government argued, they had no rights enforceable in any court. The U.S. Court of Appeals for the Eleventh Circuit agreed and rejected the Florida-based challenges, finding that the refugees could not challenge their interdiction or the government’s asylum screening procedures.60 Adopting a line of reasoning that would become familiar after 9/11, the appeals court said that because aliens detained at Guantánamo were foreign nationals outside the United States, they “are without legal rights that are cognizable in the courts of the United States” and must instead depend solely on “the American tradition of humanitarian concern and conduct” for their protection and safety.61 The New York–based challenges fared better. The U.S. Court of Appeals for the Second Circuit, which had jurisdiction over those challenges, affirmed a lower court’s ruling that the refugees be provided access to counsel before being repatriated. In rejecting the government’s contention that the refugees had no judicially enforceable legal protections, the court emphasized America’s “exclusive control” over Guantánamo, finding that it would be neither “impracticable” nor “anomalous” to accord them fundamental constitutional rights.62

The Supreme Court ultimately upheld the United States’ interdiction and direct return policy, finding that the 1951 UN Convention Relating to the Status of Refugees and the Immigration or Nationality Act did not prohibit the United States from summarily returning to Haiti individuals seized on the high seas without first determining whether they were entitled to refugee status.63 The Supreme Court, however, focused only on the extraterritorial application of statutory and treaty-based protections to those fleeing Haiti and interdicted on the high seas; it did not consider whether individuals held indefinitely by the United States at Guantánamo or other offshore prisons under its control, where they had been brought by the United States for detention and interrogation, could invoke the Constitution’s protections.

The United States’ decision to intercept those fleeing persecution was motivated partly by concerns about the domestic and political effects of a worsening refugee crisis. The United States responded with extreme measures that denied individuals any legal protections or access to U.S. courts and that led to prolonged detention without a fair process as well as to cruel treatment. It also embraced a legal position without limits. New York district judge Sterling Johnson Jr. underscored the position’s implications in ruling that HIV-infected Haitian refugees could not be detained indefinitely at Guantánamo and had to be released: “If the Due Process Clause does not apply to the detainees at (p.111) Guantánamo,” he said, the government “would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.”64 Johnson’s warning would prove prescient: after 9/11, the United States would exercise its “discretion” at Guantánamo and other law-free zones to imprison people in secret, deny them due process and access to the courts, and subject them to torture and other abuse.

The extraterritorial application of the Constitution was also the focus of litigation in connection with expanding U.S. law enforcement operations on the high seas and in foreign countries. By the 1970s and 1980s, federal criminal law had become increasingly global in scope as the United States focused on combating the narcotics trade and other international criminal activity. Increased surveillance, searches, and arrests by U.S. officials beyond America’s borders raised the question of whether those officials were constrained by the constitutional limitations that applied domestically. While Reid v. Covert and its progeny demonstrated that American citizens were protected by the Constitution when abroad, the Supreme Court had never clearly extended these rulings to foreign nationals, and lower courts had rendered conflicting decisions on the Constitution’s extraterritorial application to noncitizens.65 This issue came before the Supreme Court in 1990 through the prosecution of Mexican drug dealer Rene Martin Verdugo-Urquidez.66

Verdugo-Urquidez’s case began when Mexican police seized him for violations of U.S. law and transferred him to the custody of U.S. officials at the U.S.-Mexico border. The following day, while Verdugo-Urquidez was detained in San Diego, agents from the Drug Enforcement Agency, along with Mexican police, searched Verdugo-Urquidez’s home in Mexico without a warrant and found evidence of marijuana smuggling. The United States brought criminal charges against Verdugo-Urquidez and transported him to California. Verdugo-Urquidez moved to suppress the evidence taken from his home and to prevent its introduction at trial. He claimed that the evidence had been seized in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.67

In United States v. Verdugo-Urquidez, however, the Supreme Court ruled that the Fourth Amendment did not apply to the search and rejected Verdugo-Urquidez’s claim. Writing for a plurality of four justices (one short of a majority), Chief Justice William H. Rehnquist maintained that foreign nationals did not have any Fourth Amendment rights with respect to U.S. government action abroad.68 Imposing constitutional restraints on how U.S. (p.112) officials treat foreign nationals outside the United States, Rehnquist warned, would have “significant and deleterious consequences for the United States in conducting activities beyond its boundaries.”69 “For better or for worse,” he said “we live in a world of nation-states in which our Government must be able to function effectively in the company of sovereign nations.”70 In a passage that foreshadowed the arguments against habeas corpus rights for Guantánamo detainees and other foreign nationals after 9/11, Rehnquist remarked that any constraints on U.S. action against noncitizens abroad must come from the political branches, through diplomatic understanding, treaty, or legislation, and not from the courts through judicial enforcement of constitutional safeguards.71 Rehnquist’s approach looked both backward to membership theories of constitutional rights and forward to expanding law enforcement and military operations beyond the United States’ borders, which he believed should be conducted free of constitutional constraints.

Justice William J. Brennan Jr. took the opposite approach in a dissenting opinion joined by Justice Thurgood Marshall. Brennan maintained that when the United States acted to enforce its criminal law abroad, subjecting foreign nationals to its pains and penalties, the protections of the Constitution must accompany that extraterritorial exercise of American power.72 By seeking to prosecute and punish Verdugo-Urquidez, Brennan said, the United States had “treated him as a member of our community” and made him “quite literally, one of the governed.”73 Brennan viewed the extraterritorial application of constitutional rights as essential not only to the idea of fundamental fairness embodied in the Bill of Rights but also to America’s commitment to the rule of law. How, Brennan questioned, could the United States criticize other governments for acting lawlessly when it refused to adhere to the requirements of its own Constitution merely because it was acting outside its borders?74

Justice Anthony M. Kennedy cast the pivotal fifth and deciding vote, positioning himself between these two poles in a concurring opinion. Kennedy emphasized that no “rigid and abstract rule” governed the Constitution’s operation abroad. He instead drew on Justice Harlan’s opinion in Reid, explaining that in determining the extraterritorial reach of constitutional rights, a court must ask whether the application of a particular constitutional provision is “impracticable” or “anomalous” under the circumstances. The absence of local judges or magistrates, along with the need to cooperate with foreign officials, made it impracticable to apply the Fourth Amendment to the search of a nonresident alien’s property in Mexico.75 But, Kennedy cautioned, other constitutional protections might apply extraterritorially depending on the circumstances. In this important opinion, Kennedy thus (p.113) signaled his resistance to bright-line rules and his support for a more flexible, case-by-case approach designed to weigh the feasibility of applying a particular constitutional safeguard to a particular situation.76

Whether, and to what extent, the Constitution applied to foreign nationals outside the United States became a critical question after 9/11, with far-reaching ramifications for U.S. detentions at Guantánamo and beyond. Habeas corpus actions challenging the military detention and trial of “enemy combatants” would spark intense legal battles and produce three landmark Supreme Court decisions. Those actions would ask, at bottom, whether the United States could deny individuals the basic protections of its laws and Constitution by holding them beyond its shores. They would also raise questions about the scope of the president’s power to detain individuals indefinitely without charge, to use military commissions to try suspected terrorists for war crimes, and to engage in torture and other abuse. We turn to those challenges in part 3. (p.114)


(1.) J. Andrew Kent, “A Textual and Historical Case against a Global Constitution,” 95 Georgetown Law Journal 463, 488–89 (2007).

(2.) Louis Henkin, Constitutionalism, Democracy and Foreign Affairs (New York: Columbia University Press, 1990), 99–100.

(3.) Joseph Gales, ed., Annals of Congress, vol. 1 (1834) (statement of Rep. Madison), 449.

(4.) U.S. Constitution, 5th and 6th amends.

(5.) Sarah H. Cleveland, “Our International Constitution,” 31 Yale Journal of International Law 1, 35 (2006).

(6.) Alien Friends Act, ch. 58, § 1, 1 Stat. 570, 570-571 (1798).

(7.) Sedition Act, ch. 74, 1 Stat. 596 (1798).

(8.) Annals of Congress vol. 8 (1798), 2008 (statement of Rep. Harrison Gray Otis); Annals of Congress, vol. 8 (1798), 1984–85 (statement of Rep. William Gordon); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, NJ: Princeton University Press, 1996), 54–56.

(10.) Annals of Congress vol. 8 (1798), 2012 (statement of Rep. Edward Livingston).

(11.) Madison’s Report on the Virginia Resolutions, reprinted in The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. Jonathan Elliot, vol. 4 (1836), 556.

(13.) Yick Wo v. Hopkins, 118 U.S. 356 (1886).

(14.) Wong Wing v. United States, 163 U.S. 228 (1896).

(15.) See, for example, Bridges v. Wixon, 326 U.S. 135 (1945) (First Amendment); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (Fourth Amendment); Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931) (just compensation clause).

(p.287) (16.) Gerald L. Neuman, “Closing the Guantanamo Loophole,” 50 Loyola Law Review 1, 8 (2004).

(17.) Neuman, Strangers to the Constitution, 73–74. Senator Daniel Webster offered a different vision of this approach, rooted in membership in the Union rather than the states (78–79).

(18.) Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820). In Lougherborough, the Court upheld Congress’s power to impose a direct tax on the District of Columbia but required that any duties, imposts, and excises be uniform, as the Constitution requires. U.S. Constitution, art. I, § 8.

(19.) See, for example, United States v. Dawson, 56 U.S. (15 How.) 467 (1854) (applying venue requirements of article 3, section 2); Webster v. Reed, 52 U.S. (11 How.) 437 (1851) (applying Seventh Amendment’s guarantee of a jury trial in civil cases); Neuman, “Closing the Guantanamo Loophole,” 8.

(20.) Loughborough, 18 U.S. (5 Wheat.) at 319.

(21.) 60 U.S. (19 How.) 393 (1857). Benjamin Curtis’s dissenting opinion agreed that the Constitution covered territories but rejected the Court’s conclusion that due process required the protection of slavery. Ibid., 624–27 (Curtis, J., dissenting).

(22.) In re Ross, 140 U.S. 453, 464 (1891).

(23.) Neely v. Henkel, 180 U.S. 109, 122 (1901).

(24.) John Heffner, Note: “Between Assimilation and Revolt: A Third Option for Hawaii as a Model for Minorities World-Wide,” 35 Texas International Law Journal 591, 595–96 (2002); Gavan Daws, Shoal of Time: A History of the Hawaiian Islands (Honolulu: University of Hawaii Press, 1974), 271–80.

(25.) Julius W. Pratt, America’s Colonial Experiment (New York: Prentice-Hall, 1950), 68; Gary Lawson and Guy Seidman, The Constitution of Empire (New Haven, CT: Yale University Press, 2004), 11.

(26.) Downes v. Bidwell, 182 U.S. 244 (1901).

(27.) Ibid., 251.

(28.) Ibid., 287.

(29.) Ibid., 378, 380 (Harlan, J., dissenting).

(30.) Ibid., 293 (White, J., concurring).

(31.) Ibid., 291.

(32.) See Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand jury and jury trial provisions inapplicable in Hawaii); see also Downes v. Bidwell (revenue clauses of Constitution inapplicable to Puerto Rico).

(33.) Christina Duffy Burnett, “American Expansion and Territorial Deannexation,” 72 University of Chicago Law Review 797 (2005).

(34.) Balzac v. Porto Rico.

(35.) Gerald L. Neuman, “Whose Constitution?” 100 Yale Law Journal 909, 965 (1991).

(36.) Reid v. Covert, 354 U.S. 1 (1957).

(37.) Ibid., 5–6 (plurality opinion).

(38.) Ibid., 9.

(39.) Ibid, 6.

(40.) Ibid., 12.

(p.288) (41.) Ibid., 74 (Harlan, J., concurring).

(43.) Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (civilian dependents for noncapital crimes); Grisham v. Hagan, 361 U.S. 278 (1960) Grisham v. Hagan, 361 U.S. 278 (1960) (civilian employees of the armed forces accused of capital crimes); McElroy v. Guagliardo, 361 U.S. 281 (1960) (civilian employees of the armed forces accused of noncapital crimes).

(44.) See, for example, Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (ruling that a U.S. citizen could bring claim against the military under the Due Process Clause for using his farm in Honduras to train Salvadorian soldiers), vacated and remanded as moot, 471 U.S. 1113 (1985); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976) (ruling that the First, Fourth, and Sixth Amendments applied to U.S. citizens in Germany based on allegedly illegal intelligence gathering).

(45.) Isthmian Canal Convention, November 18, 1903, U.S.-Panama, art. 2, 33 Stat. 2235.

(46.) Ibid., art. 3.

(47.) Panama Canal Treaty of 1977, September 7, 1977, U.S.-Panama, 33 U.S.T. 39, T.I.A.S. No. 10030.

(48.) Act of August 24, 1912, ch. 390, §§ 8–9, 37 Stat. 560, 565–66 (1912).

(50.) Ibid., 18–19.

(51.) Canal Zone v. Castillo L. (Lopez), 568 F.2d 405, 407–11 (5th Cir. 1978) (evaluating a provision of the Canal Zone Code outlawing vagrancy under the federal Constitution’s due process standard); Raven v. Panama Canal Co., 583 F.2d 169, 171 (5th Cir. 1978) (subjecting the exclusion of Panamanian employees of the Canal Zone from the protections of the federal Privacy Act to review under the equal protection clause of the U.S. Constitution but rejecting the claim on the merits).

(52.) Canal Zone v. Scott, 502 F.2d 566, 568 (5th Cir. 1974).

(53.) Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 3, T.I.A.S. No. 1665, 8 U.N.T.S. 189.

(55.) Ibid., 24–25.

(56.) Ralpho v. Bell, 569 F.2d 607, 618–19 (D.C. Cir. 1977).

(57.) Ibid. (internal quotation marks omitted).

(58.) Juda v. United States, 6 Cl. Ct. 441 (1981).

(59.) See Harold Hongju Koh, “America’s Offshore Refugee Camps,” 29 Richmond Law Review 139–43, 153–55 (1994); Brandt Goldstein, Storming the Court: How a Band of Yale Law Students Sued the President—And Won (New York: Scribner, 2005).

(60.) Haitian Refugee Ctr. v. Baker, 949 F.2d 1109 (11th Cir. 1991); Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

(61.) Cuban-American Bar Ass’n v. Christopher, 43 F.3d 1412, 1430 (11th Cir. 1995).

(62.) Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1342–43 (2d Cir. 1992) (italics omitted), vacated as moot, 509 U.S. 918 (1993).

(63.) Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).

(64.) Haitian Ctrs. Council, Inc. v. Sale, 823 F. Supp. 1028, 1042 (E.D.N.Y. 1993).

(65.) Compare United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (ruling that the Constitution’s protection against unreasonable searches and seizures and guarantee of (p.289) due process applied to the FBI’s alleged abduction and torture of a suspected Italian drug smuggler in Uruguay), with Neuman, “Whose Constitution?” 970–71 (discussing cases). Also, two courts of appeals rejected challenges to arrests and seizure of foreign nationals outside the United States after assuming, but not actually deciding, that the Constitution applied. See Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979) (rejecting claim of wrongful arrest by Germany based on information provided by the United States); United States v. Rubies, 612 F.2d 397 (9th Cir. 1979) (finding that the search of alien’s vessel interdicted on high seas was reasonable).

(66.) United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

(67.) Ibid., 262–63.

(68.) Rehnquist also suggested that the Fourth Amendment did not apply to aliens inside the United States without a sufficient connection to the country to make them part of the national community because the amendment’s text referred to “the right of the people,” a connection that Rehnquist said Verdugo-Urquidez lacked, since he had been brought to the United States involuntarily. Verdugo-Urquidez, 494 U.S. at 271. But Justice Kennedy, who provided the necessary fifth vote for the Court’s ruling, explicitly rejected that suggestion.

(69.) Verdugo-Urquidez, 494 U.S. at 273.

(70.) Ibid., 275 (citation and internal quotation marks omitted).

(71.) Ibid.

(72.) Ibid., 282–84 (Brennan, J., dissenting).

(73.) Ibid., 284.

(74.) Ibid., 285–86. Justice Harry Blackmun adopted a similar approach in his separate dissenting opinion in Verdugo-Urquidez but differed from Brennan in arguing that the Fourth Amendment’s extraterritorial protections should be limited to “unreasonable searches and seizures,” not the amendment’s separate warrant requirement, at least with respect to noncitizens (297–98), (Blackmun, J., dissenting).

(75.) Ibid., 275–78 (Kennedy, J., concurring).

(76.) For a discussion of Kennedy’s approach, see Neuman, Strangers to the Constitution, 8.