Extraterritorial rights and constitutional methodology after Rasul v. Bush.

• Author: Neuman, Gerald L.
• Position: Response to Kermit Roosevelt III in this issue, p. 2017 - Application of the Constitution to Guantanamo Bay

Professor Roosevelt's thoughtful article reviews the evolution of doctrine concerning the extraterritorial application of constitutional rights, identifies Rasul v. Bush (1) as marking an opportunity to rethink prior debates, and sketches a new approach to the problem derived from the conflict of laws. (2) Roosevelt's analysis engages generously, while critically, with my own work on this subject. Although our starting points differ, we agree about many things, including the fact that new solutions could be useful. Nonetheless, I have deep reservations about a conflicts-based approach, as I will explain in this response.

Regarding the implications of the jurisdictional decision in Rasul for future litigation on the merits, I agree that the majority opinion strongly suggests in a footnote that foreign nationals in U.S. custody at Guantanamo Bay Naval Base ("Guantanamo") possess constitutional rights. (3) I agree that the opinion leaves ambiguous the reason why foreign nationals have constitutional rights there--whether because they are human beings in long-term U.S. custody or because of the special character of U.S. authority at Guantanamo. And I agree that the answer for the present is more likely to turn on features peculiar to Guantanamo than on a general exploration of extraterritorial due process. In the words of Justice Kennedy's Rasul concurrence, "Guantanamo Bay is in every practical respect a United States territory," (4) although the United States lacks formal sovereignty there. In one sense, however, a location-specific holding would not provide the "narrowest" ground of decision. Treating the enclave as tantamount to a territory should entail that the fights of foreign nationals there are comparable to their rights in overseas territories such as Puerto Rico or Guam, a fuller set of rights than foreign nationals could claim in wholly extraterritorial locations.

Even so, the question of extraterritorial fights remains important after Rasul, both within and outside the context of counter-terrorism efforts. If the government blundered by bringing its captives to Guantanamo, it may rely more heavily in the future on other, more authentically extraterritorial venues for detention. (5) The government may also relocate its operations for maritime enforcement of U.S. immigration laws against refugees, economic migrants, and smugglers. (6) From a general doctrinal perspective, the Rasul majority insisted on interpreting the dated precedent of Johnson v. Eisentrager (7) in accordance with Eisentrager's holding and context rather than give force to all its broad-ranging dicta. This more accurate assessment of Eisentrager provides an apt occasion for reexamining the geographical reach of constitutional limitations.

1. THE GEOGRAPHICAL SCOPE OF U.S. CONSTITUTIONALISM

   Professor Roosevelt and I largely agree about the history of doctrinal evolution concerning extraterritorial constitutional rights, and I will not repeat the narrative here. By the twentieth century, one crucial proposition, from which we both proceed, was settled: the Constitution as a whole applies everywhere, and is the source of U.S. government power, although particular provisions might have more limited reach. (8) Congress derives its authority from Article I (supplemented by other provisions and implications), whether it acts with domestic or extraterritorial effect. The President derives his authority from Article II, whether he acts with domestic or extraterritorial effect. (9) "[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic." (10) That proposition, however, does not itself resolve what the Constitution authorizes or forbids. The question remaining to be answered is the scope of particular provisions limiting those powers, in particular whether provisions of the Bill of Rights apply to the benefit of citizens or aliens outside U.S. territory.

   To frame the discussion, it would be useful to distinguish among three approaches to the extraterritorial scope of constitutional rights, each visible in the various opinions in the Supreme Court's 1990 decision in United States v. Verdugo-Urquidez, (11) before contrasting them with Roosevelt's proposed fourth approach.

   The first is the approach apparently taken by Chief Justice Rehnquist in his opinion (essentially for a plurality) in Verdugo. (12) In this model, U.S. citizens have extraterritorial constitutional rights and foreign nationals do not. Even as to citizens, the Bill of Rights does not apply fully and literally overseas, as Justice Black's plurality opinion in Reid v. Covert had maintained, (13) but only partially and contingently, as Justices Frankfurter and Harlan argued in their concurrences. (14) Aliens, meanwhile, "can derive no comfort from the Reid holding." (15)

   The second alternative comes from Justice Kennedy's concurring opinion in Verdugo, building differently on Harlan's methodology in Reid v. Covert. (16) For both citizens and aliens, a contextual, due-process-style analysis would inquire "which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives," and whether conditions would "make adherence to a specific guarantee altogether impracticable and anomalous." (17) As the narrowest explanation of the holding in Verdugo, this "global due process" approach enjoys precedential support. Nonetheless, the global due process approach has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism. In the past, I have criticized its unpredictability and lack of textual anchor, although I regard it as normatively superior to Chief Justice Rehnquist's Hobbesian stance. (18)

   The third alternative, appearing in the Verdugo dissents, (19) is what I have called the "mutuality of obligation" approach. I have defended it in my prior work, but I agree that it is not currently the law for foreign nationals. Roosevelt describes this approach fairly in his article. The mutuality of obligation approach presumes that the extension of U.S. constitutional rights accompanies the assertion of an obligation to obey U.S. law, because the framework of rights is designed to legitimate government's claim to obedience. (20) This correlation between rights and governing authority suggests that constitutional rights should presumptively apply to all persons within U.S. territory, (21) and to all U.S. citizens in any location, but that extraterritorial rights of foreign nationals...