Academic journal article Philosophy and Public Policy Quarterly

Constitutional Rights for Nonresident Aliens

Academic journal article Philosophy and Public Policy Quarterly

Constitutional Rights for Nonresident Aliens

Article excerpt

What claim, if any, do nonresident aliens have on the U.S. for basic legal protections? Until recently, many argued that the answer was, essentially, none. Those aliens who live in territory controlled by the U.S. were long held to be entitled to some basic constitutional protections. But aliens in territory not controlled by the U.S. were thought by many to be beyond the protection of the U.S. Constitution. The Congress could grant them certain protections as a matter of statute, but what Congress grants, Congress can take away.

Then in 2008 the Supreme Court decided the case of Boumediene v. Bush, which held that alien detainees, held by the U.S. in Guantanamo Bay, Cuba, have a constitutional right to contest their detention by filing for a writ of habeas corpus. This case extended constitutional rights further than they had ever been extended before, but it still left open a basic question: Do the detainees in Guantanamo benefit from a right to file habeas petitions because U.S. control over Guantanamo is effectively equivalent to owning a territory, or do aliens anywhere in the world benefit from basic constitutional rights that protect them from abuse at the hands of the U.S. government?

This issue is now working its way through the lower courts. But it should not be thought of simply as a legal issue. It is a legal policy issue, which ought ultimately to be governed not by some narrow reading of case precedent, but by considerations of what would be just.

Prior to the decision in Boumediene, I had argued that the question whether nonresident aliens benefit from constitutional protections was legally open, and that the moral reasons weigh in favor of extending core protections to nonresident aliens. At the same time Benjamin Wittes, in his book Law and the Long War, argued that if this were so, there would be no principled basis for limiting their constitutional rights. Thus, according to Wittes, if the courts were to accept that nonresident aliens can bring habeas suits to protect their liberty, then there would be no principled reason why they should not also be able to bring suit for wrongful deaths if their family members were killed in military attacks. Since no country could prosecute a war, no matter how just, if it had to defend every military act in court, no country should have to extend habeas rights to nonresident aliens.

I argue here that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. At the same time, I argue, contra Wittes, that not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way.

Factual Background

In the recent case of AlMaqaleh v. Gates, federal district court Judge John D. Bates held that at least some nonresident aliens, detained in Bagram Air Base in Afghanistan, have the constitutional right to seek their freedom through a writ of habeas corpus. Through this right, they can ask the federal courts to determine whether they are being held in a way consistent with, or in violation of, federal law, including the U.S. Constitution. If their detention is unlawful, the courts can order their release.

Judge Bates based his opinion on the Supreme Court's holding in Boumediene v. Bush. Justice Kennedy's opinion in Boumediene described a number of factors that are relevant to determining whether a particular detainee benefits from the right of habeas and held that these factors imply that the detainees in Guantanamo do have a constitutional right to habeas. Judge Bates held that these factors imply that detainees captured and detained in a war zone do not have a constitutional right to habeas, but that detainees captured outside a war zone, and shipped into a war zone like Afghanistan, do have a constitutional right to habeas.

Some have argued that Bagram is the new Guantanamo--a legal black hole where the U. …

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