A comparative look at extraterritoriality: Bagram and beyond.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Thursday, March 26, by its moderator, Chimene Keitner of the University of California, Hastings, who introduced the panelists: Kal Raustiala of the University of California, Los Angeles; Douglas Letter of the U.S. Department of Justice; Sabine Nolke of the Canadian Department of Foreign Affairs; and Ralph Wilde of University College London.


I am delighted to have been able to convene this panel to look at a series of questions that courts in multiple countries are facing that involve, broadly speaking, the extraterritorial application of domestic constitutional law. What I hope to do today is draw out some of the connections, similarities, and differences among three countries' approaches to the application of their domestic rights regimes beyond national borders: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act, which domesticates the European Convention on Human Rights. (1) I cannot think of a better group of people than the one we have assembled here today to guide us in that endeavor.


In my recent book, Does the Constitution Follow the Flag?, I examined the history of American theory and practice with regard to territoriality. I will draw on that history in my brief remarks here.

For over two centuries, the United States has distinguished its constitutional borders from its sovereign borders. This distinction takes two principal forms. The first, extraterritoriality, is the focus of today's panel. It is now well established that the Constitution has extraterritorial force with regard to U.S. citizens--although, as I will explain in a few moments, that is a relatively recent invention, dating from the Cold War. As Boumediene v. Bush, (2) and some earlier cases have suggested, the Constitution may also have some extraterritorial force with regard to aliens, although the degree to which this is true is greatly contested.

The second way the United States distinguishes its constitutional borders from its sovereign borders is what I call in my book "intraterritoriality." Within U.S. territorial borders there are places where the Constitution does not fully apply--or does not apply in the same way as it does in ordinary territory. These areas include Indian country and certain federal territories.

While the extraterritorial extension of constitutional rights is a product of the postwar era, intraterritorial limitations date back to the earliest days of the Republic. The important point is that more than two centuries of jurisprudence have upheld the basic notion that the Constitution does not necessarily reign where the United States rules.

That basic notion, in turn, helped in the wake of 9/11 to prop up a series of decisions by the U.S. government to exercise executive power offshore--and thereby keep that exercise of power, the government believed, beyond the reach of the Constitution and the courts. That belief turned out to be less well-founded than the Bush administration anticipated. But it had, and has, a considerable pedigree.

Before examining these issues in more detail, let me note an important though often-overlooked point. Throughout our history the debate over the geographic reach of the Constitution has revolved around rights, not powers. Only constitutional rights and protections have been understood to be bounded, if not determined, by territorial location. In the remaining time I want to very briefly sketch the history of extraterritorial constitutional rights in the United States. I will necessarily gloss over many important details, but I want to draw out the key themes in broad brush strokes.

The issue of extraterritorial constitutional rights arose over a century ago as a by-product of another form of extraterritoriality, that of consular jurisdiction in so-called uncivilized states. These were states that were deemed by the European powers of the day to be outside international society because they lacked certain legal and political--and perhaps also racial and religious features.

In the case of In re Ross, (3) for example, the Supreme Court had to decide whether U.S. consular courts operating in Japan had to honor the Sixth Amendment's guarantee of trial by jury. The case involved a murder, on a U.S. ship off the coast of Japan, that was tried by U.S. diplomats stationed in Japan. The Supreme Court's answer was "no"--the Constitution, the Court said, did not, and indeed could not, have any force in another sovereign's domain. The Bill of Rights was limited to U.S. sovereign territory.

That basic answer persisted for decades, even as thousands of Americans were tried overseas, particularly in the U.S. District Court for China that operated in Shanghai until the 1940s. This territorial view of rights was later strengthened by a series of decisions known as the "Insular Cases," which addressed whether the Constitution applied in full to the Philippines and other islands acquired by the United States after its victory in the Spanish American War of 1898.

It was this episode that gave rise to the question that serves as the title of my book, Does the Constitution Follow the Flag ?. Whether the Constitution followed the flag--and therefore protected the Filipinos--was central to the presidential election of 1900, and it also quickly became a legal dispute. The Court's approach to the question of the geographic scope of the Constitution was convoluted and confusing, leading Elihu Root to quip famously that the Constitution "does follow the flag, but it doesn't quite catch up." What Root meant was that, in essence, the Court held that only so-called fundamental rights applied in U.S. colonies, whereas all rights applied in ordinary American territory.

The Insular Cases enabled the emergence of the United States as an imperial power. But perhaps the chief lasting effect of the Insular Cases was to underscore that since the Constitution did not fully apply even inside American territory, it was all the more true that it did not fully apply outside American territory. In short, for most of the twentieth century, intraterritorial distinctions abetted extraterritorial distinctions.

This system persisted until the Cold War. In the case of Reid v. Covert, (4) well-known to many of us, the Supreme Court for the first time held that the Constitution's protections reached beyond U.S. borders. Reid is worth an entire presentation on its own, but the key here is that Reid was limited to U.S. citizens.

Nonetheless, why the Constitution now reached abroad only for citizens, but stayed firmly tethered to territory for aliens, was not entirely clear, in part because the Court did not enunciate a straightforward theory of constitutional geography. As a result, much of the action in the years after Reid involved reconciling Reid's new, extraterritorial approach to rights with the problem of aliens abroad, who increasingly encountered the many U.S. law enforcement officers now operating offshore and overseas.

Thus the many high seas drug trafficking cases of the 1970s and 1980s, which involved the Fourth Amendment's reach outside the United States--cases such as U.S. v. Verdugo-Urquidez, (5) holding that the Fourth Amendment did not apply to the search of a foreigner's home in Mexico by U.S. and Mexican agents, and the many post-9/11 cases that examined the rights of aliens detained at Guantanamo Bay--all raised similar though varied questions about the Constitution and its ties to territory.

This very brief history brings us up to the present decade and landmark cases such as Rasul and Boumediene, which for all their fanfare did not really press hard on the territorial paradigm. The key decision in Boumediene presented a sort of potted history of extraterritoriality that stressed the importance of functional considerations, and then analogized Guantanamo to U.S. territory on the grounds that the lease with Cuba, itself dating to the era of the Insular Cases, granted the United States "total jurisdiction and control" over the base. Together, these two features suggested that the naval base was essentially U.S. territory, despite the formality of Cuban sovereignty. Undergirding this decision, moreover, was a fear that to decide otherwise would, in a globalized and shrinking world, grant the Executive Branch tremendous power to choose how and when the Constitution applied to its actions, simply by choosing where to act.

Going forward, of course, the key issue is how far the Boumediene framework will extend geographically. The American base at Bagram is now the frontier, and is already the "New Guantanamo." Whatever the courts decide in Maqaleh v. Gates, (6) the case...

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