The Extraterritorial Constitution and the Rule of Law

By Martinez, Jenny S. | Constitutional Commentary, Winter 2011 | Go to article overview

The Extraterritorial Constitution and the Rule of Law


Martinez, Jenny S., Constitutional Commentary


Amendment: When acting outside the sovereign territory of the United States, the U.S. government, its officials, employees, and agents shall not deprive any person of life, liberty, or property without due process of law. The federal courts shall have jurisdiction to enforce this provision.

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During the past decade, the U.S. government has engaged in a variety of activities outside the territorial United States of questionable legality under domestic and international law. Individuals in U.S. custody allegedly have been tortured or subjected to cruel, inhuman and degrading treatment. (1) Some detainees have reportedly been turned over to other governments for abuse through the process of extraordinary rendition/ Many prisoners have been held in places such as Bagram Airfield in Afghanistan under the authority of the U.S. government for years without meaningful judicial review of the fact or conditions of their detention. (3) Additional controversy has surrounded the practice of targeted extrajudicial killings, outside the context of lawful armed conflict. (4)

These actions are inconsistent with the fundamental values embodied in the U.S. Constitution. The United States was established as a country under the rule of law--a government of laws and not of men, as John Adams put it. (5) Respect for the "unalienable [r]ights" of man was the foundational principle on which our independence was declared. (6) The United States government should act in accordance with our laws and values wherever in the world it acts.

But the courts have long been vexed by the question of the whether and how the U.S. Constitution applies outside the territorial United States. In 1891, the U.S. Supreme Court suggested that "the Constitution can have no operation in another country," (7) though that extreme view was rejected in later cases. (8) Still, considerable confusion remains. (9) In United States v. Verdugo-Urquidez, the Court held that the Fourth Amendment did not apply to the search of a residence in Mexico by federal agents. (10) But the Court was fragmented in its rationale, and Justice Kennedy (who provided the fifth vote for the majority) suggested that the Constitution should apply extraterritorially except when it would be "impracticable and anomalous."" In Boumediene v. Bush, in an opinion by Justice Kennedy, the Court held that the Habeas Suspension Clause does apply to the U.S. naval base at Guantanamo--but was vague about where else it might apply, not to mention which other constitutional provisions applied at Guantanamo. (12)

Obviously, not all provisions of the U.S. Constitution make sense in the extraterritorial context, particularly when the United States is engaged in armed conflict. The military does not, and should not, need a search warrant for Osama Bin Laden's cave. A court hearing is not required before foreign military targets are bombed. But people should not be detained for decades in U.S. custody, or subjected to ill treatment, without the protection of law. That is precisely why I have chosen the familiar language of "due process." In American constitutional law, due process is a flexible concept, one which takes into account the circumstances of particular types of government action. The process due to non-citizens in extraterritorial situations would not necessarily be the same process due within the territory of the United States. But the law would provide some protections to those individuals who are detained or otherwise deprived of basic human rights by the U. …

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