A Comparative Look at Extraterritoriality: Bagram and Beyond

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This panel was convened at 10:45 a.m., Thursday, March 26, by its moderator, Chimene Keitner of the University of California, Hastings, who introduced the panelists: Kal Raustiala of the University of California, Los Angeles; Douglas Letter of the U.S. Department of Justice; Sabine Nolke of the Canadian Department of Foreign Affairs; and Ralph Wilde of University College London.

INTRODUCTORY REMARKS BY CHIMENE KEITNER *

I am delighted to have been able to convene this panel to look at a series of questions that courts in multiple countries are facing that involve, broadly speaking, the extraterritorial application of domestic constitutional law. What I hope to do today is draw out some of the connections, similarities, and differences among three countries' approaches to the application of their domestic rights regimes beyond national borders: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act, which domesticates the European Convention on Human Rights. (1) I cannot think of a better group of people than the one we have assembled here today to guide us in that endeavor.

REMARKS BY KAL RAUSTIALA ([dagger])

In my recent book, Does the Constitution Follow the Flag?, I examined the history of American theory and practice with regard to territoriality. I will draw on that history in my brief remarks here.

For over two centuries, the United States has distinguished its constitutional borders from its sovereign borders. This distinction takes two principal forms. The first, extraterritoriality, is the focus of today's panel. It is now well established that the Constitution has extraterritorial force with regard to U.S. citizens--although, as I will explain in a few moments, that is a relatively recent invention, dating from the Cold War. As Boumediene v. Bush, (2) and some earlier cases have suggested, the Constitution may also have some extraterritorial force with regard to aliens, although the degree to which this is true is greatly contested.

The second way the United States distinguishes its constitutional borders from its sovereign borders is what I call in my book "intraterritoriality." Within U.S. territorial borders there are places where the Constitution does not fully apply--or does not apply in the same way as it does in ordinary territory. These areas include Indian country and certain federal territories.

While the extraterritorial extension of constitutional rights is a product of the postwar era, intraterritorial limitations date back to the earliest days of the Republic. The important point is that more than two centuries of jurisprudence have upheld the basic notion that the Constitution does not necessarily reign where the United States rules.

That basic notion, in turn, helped in the wake of 9/11 to prop up a series of decisions by the U.S. government to exercise executive power offshore--and thereby keep that exercise of power, the government believed, beyond the reach of the Constitution and the courts. That belief turned out to be less well-founded than the Bush administration anticipated. But it had, and has, a considerable pedigree.

Before examining these issues in more detail, let me note an important though often-overlooked point. Throughout our history the debate over the geographic reach of the Constitution has revolved around rights, not powers. Only constitutional rights and protections have been understood to be bounded, if not determined, by territorial location. In the remaining time I want to very briefly sketch the history of extraterritorial constitutional rights in the United States. I will necessarily gloss over many important details, but I want to draw out the key themes in broad brush strokes.

The issue of extraterritorial constitutional rights arose over a century ago as a by-product of another form of extraterritoriality, that of consular jurisdiction in so-called uncivilized states. …