Boumediene vs. Verdugo-Urquidez: the battle for control over extraterritoriality at the southwestern border.

AuthorRotstein, Netta

INTRODUCTION

On the night of October 12, 2010, as he was walking home in Nogales, Mexico, (1) sixteen-year-old Jose Antonio Elena Rodriguez was tragically killed by a Customs and Border Patrol ("CBP") agent standing on the US side of the United States-Mexico border fence. (2) Rodriguez was found unarmed on Mexican soil lying in a pool of his own blood, and a later autopsy indicated he was shot through the steel fence at least ten times from behind. (3) The CBP agents present at the scene allege that on the night Rodriguez was killed, they witnessed smugglers drop drugs on the US side of the border and then return to Mexico. (4) According to the agents, individuals on the Mexican side of the border began assaulting the agents with rocks. (5) The agents verbally commanded the individuals to stop, but these warnings were ignored. (6) One agent then opened fire and hit one of the subjects, allegedly Rodriguez. (7)

Unfortunately, this violent interaction across the United States-Mexico border is not an isolated incident. (8) Incidents involving use of excessive force by US government actors at the border have increased dramatically since 2001. (9) Recently, the surge of child immigrants (10) has refocused the spotlight on the systematic abusive policies of CBP agents towards foreign nationals at the United States-Mexico border. (11) Though the CBP plays a crucial role in securing our borders, it should not do so at the expense of human rights. (12)

The Rodriguez lawsuit comes on the heels of Hernandez v. United States, (13) a landmark Fifth Circuit decision that originally extended constitutional protections under the Fifth Amendment to foreign nationals injured abroad by the conduct of CBP agents yet refused to recognize such rights under the Fourth Amendment. (14) However, en banc, the Fifth Circuit reversed in part and affirmed in part, declining to recognize any constitutional protections to foreign victims and granting immunity to government agents. (15) The Circuit's faulty application of Supreme Court precedent under the extraterritoriality doctrine (16) and strict interpretation of constitutional language sets a dangerous standard that encourages abuse of law enforcement power at the border at the expense of innocent human lives. (17)

This Note aims to track the Hernandez (18) reasoning, situate it within the historical development of the extraterritoriality doctrine, and evaluate its scope and implications. Part I provides a detailed overview of the development of the extraterritoriality doctrine of the US Constitution. It also describes the modern precedent governing this area of law. Part II critically examines the Hernandez decision in light of its theoretical approach to extending constitutional protections abroad. Part III evaluates the implications and limitations of Hernandez and proposes a more accurate interpretation of the extraterritoriality doctrine as a guide for resolving this and future incidents of violence by CBP agents. Ultimately, this Note argues that the court's narrow interpretation of constitutional language and inadequate application of extraterritorial principles when deciding whether to deny or extend rights to foreign nationals injured abroad at the hands of government actors is dangerous. Such interpretation encourages inconsistencies and perpetuates a system of lawless law enforcement at the border, where CBP agents have plenary power to act with little oversight and accountability by US magistrates. Instead, this Note proposes an alternative framework for analyzing future extraterritorial incidents of violence at the United States-Mexico border.

  1. THE DEVELOPMENT OF THE EXTRATERRITORIAL CONSTITUTION

    During much of the United States' history, there was little need to examine the Constitution's geographic reach. (19) During the nineteenth century, the United States looked to expand its boundaries by admitting new states into the Union. (20) As the United States seized territory and began to build an overseas empire after the Spanish-American War, (21) the question of whether the Constitution follows the flag began to seep into domestic courts. (22) In a series of cases known collectively as the Insular Cases, (23), the Supreme Court addressed issues of when constitutional protections apply abroad. (24) Such examination of the limitations of the Constitution ultimately developed into the extraterritoriality doctrine. (25) Today, the extraterritoriality doctrine defines the contours of the force and effect of the Constitution abroad--particularly the applicability of constitutional rights beyond the physical, or de jure, borders of the United States. (26)

    1. Extraterritoriality's Humble Beginnings: The Slow Progression from Formalism to Functionalism

      The Supreme Court first clearly addressed issues of extraterritoriality in In re Ross. (27) There, the Court denied habeas corpus rights to a US citizen sentenced to death by the American consular tribunal in Japan following his conviction for a murder committed aboard a private American ship in the harbor of Yokohama. (28) Drawing a hard line at the border, the Court invoked a strictly formalistic approach and held that American citizens do not enjoy the same rights abroad as they do at home because "[t]he Constitution can have no operation in another country." (29) Despite the seemingly definitive rule that the US Constitution was null abroad, the Court briefly reasoned that enforcing constitutional rights abroad would also "be impracticable from the impossibility of obtaining a competent grand or petit jury." (30)

      Next, in a series of opinions known as the Insular Cases, (31) the Court addressed the question of extraterritoriality in the context of its applicability to any territory that is not a State; specifically, the insular geographic areas of Puerto Rico, (32) Guam, Hawaii, (33) American Samoa, and the Philippines. (34) The Court formulated the doctrine of territorial incorporation, (35) standing for the proposition that "the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories." (36) As early as the turn of the twentieth century, the Court recognized that even in unincorporated territories, the federal government of the United States was bound to extend certain guarantees of fundamental rights to foreign nationals residing in those territories. (37) The Court heavily considered the practical difficulties (38) inherent in "enforcing all constitutional provisions always and everywhere," but maintained that appropriate constitutional provisions should apply where most necessary. (39) This way, the Court slowly but surely moved away from the strict formalistic approach to extraterritoriality suggested in Ross, and toward a more functionalist approach that takes into account the practical considerations of applying constitutional provisions abroad in territories subject to some sort of US control. (40)

      Roughly half a century later, in Johnson v. Eisentrager, (41) the Court refused to extend constitutional rights under Articles I and III and the Fifth Amendment to alien enemy combatants detained by the US Army in a prison located in an American occupied part of Germany. (42) Respondents were twenty-one German nationals who petitioned for writs of habeas corpus after they were captured, tried, and convicted in China by the US military for violations of the laws of war. (43) In his dissent, Justice Black posited that the majority utilized a strict interpretation of extraterritoriality principles in its decision to deprive habeas corpus rights to aliens detained by US government actors abroad "solely because they were convicted and imprisoned overseas." (44)

      However, moving away from the formalistic approach applied in Ross to deny rights to foreign nationals strictly on the basis of their nationality, the Eisentrager Court considered several important factors. First, the Court both recognized a "generous and ascending scale of rights" that broadens as noncitizens strengthen their ties with the United States and identified a universal distinction "between citizens and aliens" as well as between "aliens of friendly and of enemy allegiance." (45) Second, the Court emphasized that the "prisoners at no relevant time were within any territory over which the United States is sovereign" as well as the fact that the "scenes of [the prisoners'] offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." (46) Most importantly, the Court considered the practical difficulties in extending the privilege of habeas corpus abroad in this case. (47)

      Overruling Ross, the Court in Reid v. Covert (48) explicitly abandoned a strictly formalistic approach to extraterritoriality and, for the first time, held that the Constitution in its entirety applies to American citizens living abroad. (49) In Reid, wives of military men were denied the constitutional right to a jury trial and, instead, were forced to stand trial in a military court, for charges of murder committed abroad. (50) The Court rejected "the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." (51) Further, the Court expressed that "[w]hen the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." (52) Importantly, the Court warned that it would not tolerate lawless government action by making clear that "[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written...

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