Tying off all loose ends: protecting American citizens from torture beyond America's borders.

Author:Magnusson, Landon Wade

In the United States, the law prohibits the government from torturing its citizens. U.S. law also prohibits the government from sending its citizens to another country zohere they would likely be tortured. These two scenarios seemingly covered all possible ways that the U.S. government could bring about the torture of its own citizens--until Munaf v. Geren, 553 U.S. 674 (2008). In Munaf, the Supreme Court posed an intriguing question: Does the law also forbid the U.S. government from transferring custody of an American citizen to a country &at will likely torture him, when the U.S. government was maintaining custody of that citizen within, and at the permission of, the country &at engages in torture? This Article seeks to definitively close this possible loophole through two points of attack. First, it looks to emerging theories on the extraterritorial application of the Constitution and concludes that Fifth Amendment Substantive Due Process extends beyond America's borders to protect her citizens from any government action that would lead to their torture. Second, this Article explores the federal law &at ostensibly leaves open the possibility for torture and, after analyzing its drafters' intent as well as the international conflicts that a pro-torture interpretation would cause, concludes that any loophole found is false.


On the same day that the momentous Boumediene v. Bush (1) opinion was issued by the United States Supreme Court, Munaf v. Geren, (2) another important decision concerning the extraterritorial applicability of constitutional protections and the Habeas Corpus Statute, (3) was issued with much less fanfare. (4) Perhaps because the decision was unanimous, (5) or perhaps simply because it was overshadowed by the Boumediene decision, Munaf as well as the controversial issues that it tackled and, more importantly, those that it left unanswered, have seemingly flown under the radar.

In Munaf, a multi-national force in Iraq led by American military personnel, arrested and detained two American citizens for allegedly breaking Iraqi law. (6) Next-friend habeas corpus petitions were filed on behalf of each of these detainees in the Federal District Court for the District of Columbia, requesting that the court enjoin the American Armed Forces from releasing the detainees into Iraqi custody. (7) To ascertain whether that injunction should be granted, the Court had to determine first, whether the federal district court had jurisdiction over habeas petitions in this situation (i.e., for American citizens, held by American troops within another State's sovereign territory), and then whether a court could exercise that jurisdiction to enjoin the petitioners' transfer out of American custody. (8)

While the Court ruled in favor of the petitioners by holding that "United States courts have jurisdiction over habeas corpus petitions filed on behalf of American citizens challenging their detention" by American forces outside of the territory of the United States, (9) the ruling ultimately went against them as the Court held that "district courts [cannot] exercise [habeas] jurisdiction to enjoin [American forces] from transferring" American citizens outside of American territories and possessions into the custody of local authorities or to be tried by those authorities. (10)

This summation, however, omits one very important detail which in turn elicits a significant question left unanswered by the Court. One of the detainees originally sought his injunction out of fear that his Iraqi custodians would torture him. (11) The Supreme Court dismissed his claim because passing judgment on the humaneness of the treatment of American citizens is the prerogative of the political branches. (12) Then, because it was unnecessary to the holding, the Court refused to consider whether the United States' political branches could knowingly transfer a U.S. citizen from its custody into the hands of a sovereign that would likely torture him, when that citizen is already located within the territory of that torturing sovereign. (13) Could such rare circumstances allow the U.S. to knowingly surrender one of its own citizens into the hands of a likely torturer?

We already know that the U.S. government cannot torture its own citizens, and that it cannot force its citizens across borders where they will likely be tortured. However, Munaf apparently created a new avenue for American complicity in the torture of its citizens-which may be particularly troublesome in light of the modern American lifestyle. Currently, Americans make about 60 million trips outside the United States each year, (14) approximately 3.2 million Americans reside outside of U.S. borders, (15) and more than one half million federal employees and their dependents, including military personnel, live overseas. (16) The sheer number of Americans living abroad would suggest that the number of Americans arrested and detained each year while overseas is not insignificant. (17) There is not significant data about how many of those Americans are actually detained by American authorities while abroad. Nevertheless, it appears that the arrest of an expatriate U.S. citizen, and that citizen's possible detention by American authorities, may be much less exceptional than in years past.

Moreover, while Americans are abroad, many of the laws and guarantees that protect them while at home do not apply. Indeed, even many constitutional protections that are considered fundamental supposedly do not restrict the U.S. government's actions with regard to its citizens while they are beyond American borders. (18) In addition, Americans who break foreign laws are generally subject to all the methods of trial and punishment of the country in which they committed those crimes, even when American laws would proscribe those methods. (19)

As a result, leaving Munafs question unanswered allows too much room for abuse. This Article therefore works to answer that question by arguing that American federal and constitutional law prohibit the intra-State transfer of U.S.-held detainees when it is more likely than not that the State receiving those detainees will torture them. (20) Thus, once an American citizen has entered into the custody of the United States government, whether within the U.S. or abroad, there is no longer any excuse for that person to be tortured.

In Part I, this Article shows how the Constitution extends beyond American borders to protect individuals from torture through the Fifth Amendment Substantive Due Process Clause. Part I begins with a brief overview of the jurisprudence surrounding the extraterritorial application of the Constitution, especially as it has been established by the Insular Cases. Then, it proceeds to examine the newest developments in the extraterritorial application of the Constitution, specifically analyzing the Boumediene case and its functional approach. Part I concludes by applying that functional approach to the question posed by this Article, ultimately finding that it allows the Constitution to reach beyond American borders to prohibit the U.S. government from transferring American detainees into the custody of likely torturers.

Part II examines the extent to which U.S. federal law also bars the transfer of expatriate American detainees. This Part first analyzes the Foreign Affairs Reform and Restructuring Act (FARR Act), showing that even though the Act's language does not clearly prohibit such transfers, its intent does. Then, this Part shows that even if the Act's legislative history is unclear as to its intent, the Charming Betsy doctrine nevertheless requires an interpretation that is not incongruous with international law--prohibiting the U.S. from transferring anyone to likely torture.

Finally, Part III addresses an important objection to this Article's argument that was raised by Chief Justice Roberts in the Munaf opinion. The question is: if the United States refuses to transfer an alleged criminal into the custody of a torturing State, does that not essentially grant the criminal a "get-out-of-jail-free" card? (21) Generally, notions of justice and fundamental fairness would oppose any transfer that would create such an outcome. Consequently, Part III demonstrates how the United States is also permitted to assert jurisdiction over detainees and prosecute them in the United States when it cannot transfer them for fear of imminent torture.

The United States cannot torture its citizens at home. Neither can it send its citizens abroad to be tortured. In the end, this Article hopes to conclusively "tie-off all of the loose ends" that would allow the American government to be responsible for the torture of one of its citizens by also showing that the U.S. government is forbidden from transferring an American into the custody of a State where he would, more likely than not, be subjected to torture, even when the American is already within that State's territory.


    The degree to which the Constitution protects individuals when they are not on United States territory is a question that has produced a tremendous amount of jurisprudence and scholarship. (22) However, this Article will only give a brief summary of the doctrine before approaching the newest cases on the subject and the manner in which they extend many of the Constitution's protections, most importantly Substantive Due Process, to U.S. citizens worldwide while they are under American authority.

    1. The Insular Cases and the Extraterritorial Application of the Constitution

      Prior to the end of the nineteenth century, the question of how far the protections of the U.S. Constitution extended beyond the United States had not been frequently addressed. All that was clear, as evidenced by cases

      Caught up in the imperialistic frenzy of the late 1800s, the U.S. government worked to expand its global influence...

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