Academic journal article Harvard Law Review

The Extraterritorial Constitution and the Interpretive Relevance of International Law

Academic journal article Harvard Law Review

The Extraterritorial Constitution and the Interpretive Relevance of International Law

Article excerpt

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, (1) it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be "impracticable and anomalous." (2) Given the significance of this matter, it is striking that the "impracticable and anomalous" standard "has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism." (3) Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters. (4)

This Note argues that the "impracticable and anomalous" standard need not be considered quite so problematic if it is interpreted, in light of the precedents on which it relies, as implicitly referencing generally applicable international law. Important issues in the war on terrorism that the conventional approach would relegate to a case-by-case, discretionary judicial determination of whether an application of the Constitution is impracticable in policy terms can instead be decided more systematically by applying the standard in light of international humanitarian law (IHL). To clarify at the outset, this approach is different from previous suggestions that the substantive content of international law should determine the scope of constitutional rights applicable extraterritorially, which risks of giving judges too much discretion and infringing on American constitutional dualism. Instead, the approach is to ask not what rights apply under international law, but rather in what sorts of circumstances international law contemplates the protection of individual rights. Asking when international law provides strong individual rights protections--in other words, when international law deems such protections practicable--should guide the constitutional inquiry. With this question in mind, two key distinctions in IHL--between law regulating the battlefield and law regulating detention, and between occupied territory and active zones of operations--are highly salient for determining when it would be "impracticable and anomalous" to apply individual rights extraterritorially during war.

What this Note does not seek to do is justify the "impracticable and anomalous" approach as normatively superior to positions that either reject extraterritorial application completely or demand that constitutional protections accompany all government actions. The intent, rather, is to show that interpreting the standard by reference to international law has a longstanding constitutional pedigree, and that this approach to the standard is superior to, and more justifiable than, the standard's conventional understanding.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (5) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the "impracticable and anomalous" standard in historical context, drawing on the nineteenth-century use of international law to identify "powers inherent in sovereignty," and lays out a justification for the contemporary use of international law in fleshing out the Constitution's extraterritorial applicability. Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law--vestiges of the traditional "Hague Law"-"Geneva Law" distinction in IHL--this Note demonstrates how, under the "impracticable and anomalous" standard, Fourth Amendment protections do not apply to house-to-house counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. …

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