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 INTRODUCTION
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. Members of the Antitrust Division of the U.S. Department of Justice are working with the British in what can be fairly characterized as a "joint venture" among several governments, including the United States. Ultimately, the British citizen is brought to the United States to face a criminal trial for the conduct uncovered by the multinational investigation. He moves to exclude evidence of his act of producing the documents on the ground that it amounted to a compelled, incriminatory statement.
Under U.S. law, the compelled production of incriminating documents may give rise to a violation of the Fifth Amendment if the government seeks to introduce, as evidence of guilt, that the defendant had possession of the documents and turned them over under legal compulsion. (4) If the act of production in this case is judged to be testimonial and incriminating, there could be a Fifth Amendment violation--depending, however, on whether the privilege extends to aliens investigated abroad by the United States.
Second, a citizen of Germany is detained abroad in connection with an investigation of a terrorist attack on a U.S. diplomatic facility in Germany. Working with local authorities and in accord with local law, U.S. agents search his home without a warrant and discover bomb-making supplies and maps of the facility. The suspect is arrested and brought back to the United States for trial. He moves to suppress the evidence on two grounds: first, the evidence was obtained without a warrant, and, second, the search was unreasonable.
The Fourth Amendment to the U.S. Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," (5) and it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable." (6) Can the German citizen hold the government of the United States to this requirement for its search in Germany? Looking beyond the hypothetical, would a U.S. citizen whose home in Germany was subject to such a search be able to press such a claim? (7)
The answers to these questions are not easy and cannot be determined by the mechanical application of a categorical rule of decision. Instead, the approach taken by courts, when confronted with requests to apply the Constitution to actions abroad (that is, "extraterritorially"), is context-specific, tailored to the needs of the case, and sensitive to the practical limitations of enforcing a particular rule. From these decisions, I believe that we can identify a series of factors--indeed a framework--for determining whether and to what extent a particular constitutional rule should have force abroad.
This Essay proceeds in four Parts. Part I examines competing conceptions of how the question of extraterritoriality should be analyzed and resolved. Part II reviews the authority in international law for a nation to undertake extraterritorial prosecutions, the types of crimes that are subject to such prosecutions, and methods of obtaining jurisdiction over the accused. Part III explores the body of case law addressing extraterritorial application of constitutional provisions to the actions of the executive undertaken beyond the borders of the United States. Part IV describes a framework for evaluating whether a constitutional provision should be applied extraterritorially in a particular case and applies that framework to the hypothetical scenarios outlined above. While "grand theories" such as those outlined in Part I are helpful in trying to understand the issues, they cannot, I submit, provide rules of decision in areas of law as complicated as those considered here.
COMPETING PERSPECTIVES ON THE EXTRATERRITORIAL APPLICATION OF CONSTITUTIONAL RULES
Whether constitutional provisions have force beyond the borders of the United States--that is, whether they have "extraterritorial" application--is a difficult question that finds no easy answer in the precedents of the Supreme Court or the work of legal scholars. The question first arose when the United States began its expansion from thirteen Atlantic colonies into a transcontinental nation, and it has reemerged most recently in two different contexts: the war on terror and criminal prosecutions of conduct, often of a commercial nature, that takes place abroad. Determining whether the Constitution has extraterritorial force depends in large measure on how one understands the Constitution--is it a pact between a people and its government, a charter authorizing limited action by a government in the name of the people, or a combination of both?
Broadly speaking, there are two competing views on the extraterritorial application of constitutional requirements, both of which have been articulated recently by prominent members of the legal academy.
The Compact Theory of the Constitution
Some regard the Constitution as a framework for establishing domestic order, without direct application to international conduct. Supporters of this theory--known as the "compact theory" of the Constitution--are inclined to the view expressed over one hundred years ago by Justice Stephen J. Field:
By the Constitution a government is ordained and established "for the United States of America," and not for countries outside of their limits.... The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. (8) From this perspective, the procedural requirements set forth in the Constitution cannot bind the government when it acts overseas because the permissibility of the government's conduct is determined by agreements, such as treaties, between nations--not by a document that defines the relationship between the U.S. government and its people.
Shades of this outlook have found recent expression in, for example, the observation of Jack Goldsmith and Eric Posner...