Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
Cabranes, Jose A., The Yale Law Journal
FEATURE CONTENTS INTRODUCTION I. COMPETING PERSPECTIVES ON THE EXTRATERRITORIAL APPLICATION OF CONSTITUTIONAL RULES A. The Compact Theory of the Constitution B. The Organic Theory of the Constitution C. The Compact and Organic Theories Expressed by the Supreme Court II. THE AUTHORITY OF NATIONS TO PROSECUTE INDIVIDUALS RESIDING BEYOND THEIR BORDERS A. Jurisdiction over Conduct Abroad B. Jurisdiction over Individuals Found Abroad III. DECISIONS ADDRESSING THE EXTRATERRITORIAL APPLICATION OF U.S. CRIMINAL PROCEDURE UNDER THE CONSTITUTION IV. A FRAMEWORK FOR IDENTIFYING THE CONSTITUTIONAL CONSTRAINTS THAT GOVERN THE INVESTIGATION, PROSECUTION, AND PUNISHMENT OF INDIVIDUALS LOCATED ABROAD A. Powers Available Abroad but Not at Home B. Connection to the United States C. Risk of Irreparable Injustice D. Practical Considerations Relevant to the Particular Context E. Rejection of Categorical Rules CONCLUSION
The Constitution of the United States sets forth a framework for government, granting powers to the various branches of government, imposing restrictions on how those powers may be exercised, and providing a guarantee that certain rights of the people will not be infringed by the government. (1) The Constitution is largely silent, however, on the question of whether--and to what extent--constitutional provisions have force beyond the borders of the United States. Courts have been called upon to consider this question in several contexts, including those presented by the nation's westward expansion, the administration of its territories and colonies, the conduct of its wars, the enforcement of its laws, and, more recently, its initiatives undertaken to combat international terrorism. The recent efforts of the United States in opposing terrorism, both through criminal law enforcement and through means more closely analogous to those used during wartime, have prompted much discussion and debate--in Congress, the courts, the academy, and the media--over the role of the Constitution in limiting the tools available to the government when it acts abroad and in guaranteeing rights to those affected by government action.
In this Essay, I consider a narrow aspect of this larger question: under what circumstances must the overseas actions of the U.S. government conform to procedural requirements established by the Constitution for the investigation and prosecution of crime? I take as my point of departure an unabashed recognition of the worldwide responsibilities of the United States--a country long ago described by John Marshall as the "American empire" (2) and even earlier by Thomas Jefferson as the "Empire of liberty" (3)--in securing the peace and security of free people under a system of law framed by our Constitution. The United States labors under a tension unknown to nations that either have no such global responsibilities or exercise raw power in their national self-interest without concern for the rule of law. While the United States accepts--indeed, it embraces--its international responsibilities as the world's only superpower, we also expect that, when carrying out those obligations, our government will act in conformity with standards integral to our national identity.
This tension between the necessary exercise of power and the equally vital observance of constitutional principles has become more pronounced in recent years in light of the attack on our capital and premier city on September 11, 2001, and the expanding number of domestic criminal prosecutions arising from activities, both of a violent and a commercial nature, that take place overseas. Consider the following two hypothetical scenarios:
First, a British citizen living in London is compelled under applicable laws of the United Kingdom to produce incriminating documents, without the promise of immunity, to British investigators. …