The Territorial Reach of the Constitution

by Roger Alford

Just to get the discussion going, I wanted to highlight the Court’s analysis in Section IV of the Boumediene decision on the territorial reach of the Constitution. The precise question presented is the geographic question of whether the constitutional guarantee of the writ of habeas applies to detainees at Guantanamo Bay.

Before discussing the case, it is worth highlighting the different models that have been used to address the territorial reach of the Constitution. As Gerald Neuman has noted in his important article “Whose Constitution?” in the 1991 Yale Law Journal, there are four major models: universalism, membership, territorial, and a balancing approach of global due process. Here is how Neuman summarizes the four models:

Universalist approaches require that constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place. The precise commands of the provisions, especially of those creating rights subject to balancing tests, may vary from place to place, but one can never simply dismiss the provisions as inapplicable….

Social contract rhetoric has played a significant role in American constitutionalism. Social contract theory seeks to legitimate government through the idea of an actual or hypothetical agreement embodying the consent of the governed who have established the state and empowered it to govern. Some accounts of social contract theory identify a limited class of “members” as the proper beneficiaries of the contract. The beneficiaries have rights based in the contract; nonbeneficiaries are relegated to whatever rights they may have independent of the contract….

Under a strictly territorial model, the Constitution constrains the United States government only when it acts within the borders of the United States. Strict territoriality prevailed as dogma for most of American constitutional history, until its overthrow in Reid v. Covert….

This emphasis on the countervailing necessities of overseas action may suggest that all of these models can be collapsed into a brand of harmless universalism: recognize constitutional rights as potentially applicable worldwide, and then balance them away. One might engage in ad hoc balancing in the individual case, or balance more categorically; the balancing process may be intrusive or highly deferential. The concurrences of Justices Frankfurter and Harlan in Reid v. Covert offer an example of this approach as regards citizens’ rights abroad, and Justice Kennedy in Verdugo-Urquidez located himself within the tradition of Harlan’s concurring opinion. This approach suggests that, ultimately, extraterritorial constitutional rights boil down to a single right: the right to “global due process.”

So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court’s determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality. Here are a few key excerpts:

We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory…. [F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. (pp. 23-25)….

In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there…. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” (pp. 33-35)….

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. (p. 41).

My first blush reading of the case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I’m not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.

5 Responses

  1. Roger,

    I also it might be useful to compare the extraterritorial applicability of the Constitution with jurisprudence on the extraterritorial applicability of human rights treaties, which poses very similar questions. Generally speaking, human rights treaties apply to territories under a contracting state’s ‘jurisdiction’, defined in a leading European Court of Human Rights case, Loizidou, as any area under the state’s effective overall control. You will certainly have noted that Justice Kennedy uses the word ‘jurisdiction’ in this functional sense as an exercise of power throughout his opinion.

    (see more generally this article of mine forthcoming in the next issue of the Human Rights Law Review)

  2. Roger,

    I think the sense that Court is taking is a recognition that dejure sovereignty is not enough and that defacto sovereignty should be a permitted basis for the Constitution running outside the United States. The court recognizes the prudential concerns, but the essence seems to be functional – as the Court states in the majority. Put another way, if the Executive is going to be running around the world doing things then the Constitution may permit the Court as a coequal branch to allow challenges to those actions. The Court has to take into account the complexities that surround such a habeas corpus analysis, but in many ways what the court is doing is recognizing that to the extent the Executive and Legislative are going to take on an unending internationalized role, then the Court has to accept a role in being a place where policing of those actions occurs.

    I would suspect the willingness of the Court to do this comes with its increasing frustration with the grabs for power of the Executive in this war. The persnickety analysis of lawyers who do not appreciate the grandeur of the law and the rule of law I suspect is part of the frustration. The willingness of the majority to step away from the incomplete 1789 habeas records, to look at what happened in other places post 1789, and to synthesize from these principles the way it is going to operate now is hugely significant.

    I was very much struck by how Somersett’s case about an alien slave, and Brown even came in, also the disdain for Dred Scott and the interpretation of the Insular cases (Pedro Malavet has some interesting thoughts on those cases).

    It is about pragmatism to avoid the Executive to be able to abuse its power. It is similar to the reason the Geneva Conventions are written in general terms, so that persons can not torture people by saying “that method was not on the list”. The court gets the essence of the need in a democratic society for the Executive and Legislative to confront some type of check. Why? Because for seven years the Executive and Legislative have demonstrated that they are unwilling to act in a manner consistent with the good faith that is the predicate for the kind of judicial deference those in the minority would prefer.



  3. Souter’s concurrence points out the essence of what is going on here

    After six years of sustained executive detentions

    in Guantanamo, subject to habeas jurisdiction but

    without any actual habeas scrutiny, today’s decision is no

    judicial victory, but an act of perseverance in trying to

    make habeas review, and the obligation of the courts to

    provide it, mean something of value both to prisoners and

    to the Nation. See ante, at 69.

    It is simply a rejection of the kind of mechanistic deference of Scalia and Roberts to the Executive. It is obvious that the Executive can only be entitled to such deference if its actions are consistent with good faith respect for law. The ersatz processes based on ersatz legal analysis have come home to roost!



  4. On Scalia’s dissent, the essence that he does understand is:

    “The gap between

    rationale and rule leads me to conclude that the

    Court’s ultimate, unexpressed goal is to preserve the

    power to review the confinement of enemy prisoners held

    by the Executive anywhere in the world. The “functional”

    test usefully evades the precedential landmine of Eisentrager

    but is so inherently subjective that it clears a wide

    path for the Court to traverse in the years to come.”

    I think that Scalia is absolutely right that the threat of that happening is present in the majority opinon. However, I read the majority as saying the reason for that threat is because of the profound departures that the administration has taken in the present war/armed conflict/pick your word in the manner in which the US has treated detainees.

    The majority has looked at habeas and seen that it can be applied practically at Gitmo to these non-citizens being held. Scalia himself recognizes that habeas has been found to apply to US citizens abroad in a manner that is a departure from the English practice. Scalia just does not like that flexibility being applied to these non-citizens abroad. The majority does.

    Scalia waving of the flag of the 400 000 POW’s held in WWII misses the point that these persons had POW status as opposed to these enemy combatants who are being denied (in error) any status under the Geneva Conventions.

    Second, in Johnson v Eisentrager where these persons were held in Landsberg Prison, after a conviction by a properly constituted military commission in China, there is no hint at any step of the process of the kind of horrendous detainee treatment that permeates any question concerning detainee treatment in the War on Terror. In fact, looking at Quirin, the key thing there is that there was no hint of horrendous detainee treatment that permeates the detainee treatment in the War on Terror. If at Landsberg prison it was reported that those detainees were being subject to the kind of torture that we regularly hear about with regard to Gitmo and other places in the war on terror, I am not as sanguine as Scalia in thinking that the US court would not have entertained those cases.

    Third, the fact that some detainees who have been released have joined for the first time or rejoined the enemy leaves to the side the specific issue of on what basis are we holding each of these detainees. I understand that hundreds of detainees have been released. The number of 30 given by Scalia as having joined or rejoined the battle tells us nothing.

    We should remember in the Civil War there were southern soldiers paroled on their promise not to take up arms again who went back and fought. When it got too bad in terms of those taking up arms again in dishonor, parole was ended (that led to Andersonville – more on that someday). But the ending of parole meant they would be held to the end of hostilities. Similarly, if we are having problems with numbers released and we consider they rejoined the battle (so should not have been released), the answer is in holding them until the end of hostilities after review in proceedings that are reasonable – not ersatz processes of dubious fairness. We did this in WWII and, where there were weaknesses, attempted to improve on those processes.

    This is where the dissents miss the point, by there willingness to defer to an Executive and Legislature that was bent on lawlessness, they created the conditions for persons from a tradition that places a floor under human rights in war to react. That is what I think is the essence of what is going on here through the majority mucking up the carefully structured – conviction machine – to provide ersatz process.

    What will be interesting now is to see in this election year a great deal of heat being thrown up about being “soft on terrorism” as the right attempts to get a new law like a “national security court” passed in Congress before the election. You can see this is going to be set up. The left will probably cave because they do not want to be seen as “soft on terror”.

    I only hope that there are persons in the left and the right who come together to stand with the older traditions that were thrown out during the past seven years to put in place processes of review that are meaningful for enemy combatants.

    At the heart, the effort to put these people in places without law is made to fail by this decision. That is the fundamental error of those slick lawyers who tried to pull that off. And it has done an enormous disservice to our fighting persons protecting us and to the traditions of warrior culture of the United States. There is a term for these types in the military – REMF (Rear Echelon Mo Fo’s). They really screwed it up so that a majority of the Supreme Court feels the need to step in like this. Shame on those boneheads.



  5. I would also suggest that this case be read in conjunction with Munaf. While Munaf is a unanimous opinion, the Souter concurrence points out precisely what is in the mind of many members of the Court, to wit:

    The Court accordingly reserves judgment on an “extreme

    case in which the Executive has determined that a

    detainee [in United States custody] is likely to be tortured

    but decides to transfer him anyway.” Ante, at 24–25. I

    would add that nothing in today’s opinion should be read

    as foreclosing relief for a citizen of the United States who

    resists transfer, say, from the American military to a

    foreign government for prosecution in a case of that sort,

    and I would extend the caveat to a case in which the probability

    of torture is well documented, even if the Executive

    fails to acknowledge it. Although the Court rightly points

    out that any likelihood of extreme mistreatment at the

    receiving government’s hands is a proper matter for the

    political branches to consider, see ante, at 23–24, if the

    political branches did favor transfer it would be in order to

    ask whether substantive due process bars the Government

    from consigning its own people to torture. And although

    the Court points out that habeas is aimed at securing

    release, not protective detention, see ante, at 16, habeas

    would not be the only avenue open to an objecting prisoner;

    “where federally protected rights [are threatened], it

    has been the rule from the beginning that courts will be

    alert to adjust their remedies so as to grant the necessary

    relief,” Bell v. Hood, 327 U. S. 678, 684 (1946).

    The case at hand is with regard to American citizens and so the concurrence refers only to that case. However, what is left sub silentio is the idea of a non-citizen being transferred by the United States and whether a habeas attack would reach that. A second case is the case of Americans giving someone to a second country who then gives the person on to a third country (or whatever length of daisy chain is involved).

    What is excellent in this opinion is that Roberts does reject the formalist argument about the MNF not being US custody and looks at the substance of what is going on to recognize that the court would have habeas authority here. Secondly, it is significant that Hirota is limited significantly in this setting – something that was not a foretold conclusion – and by a unanimous court.

    However, what is disturbing in the unanimous opinion is the deference to the political branches on the evaluation of the “torture-likelihood” of the foreign state to which someone is transferred. Roberts and those who do not join Souter’s concurrence are clearly trying to leave open space to decide that they should defer on extraordinary renditions cases to the Executive’s decision. Once again, the argument will be that deference should be given by the Roberts, Alito, Scalia and Thomas types while one would hope that a majority would look more to the substance of what was going on like they did in Boumedienne. I think a look at the substance would recognize situations where the Executive of our country was in cahoots with the Executive of another country to deny torture was happening and to in fact send someone to be tortured (liked Arar being sent with a list of questions to Syria). The Court may resist going into that foreign relations space, but if the Convention Against Torture and the Geneva Conventions are going to have meaning then I hope it will not punt on the political question on this too.

    I think our courts need to comprehend that people around the world will respond to fair decisions by our courts, just like they respond negatively to torture being done by our government. People respond to our conduct and if we want to win their hearts and minds we have to do those things that are conduct that they like – while at the same time protecting ourselves from those who wish us ill will. That is the terrible task that these persons in government have in this world, but that’s the job they want to take.

    If we are going to be a city on the hill, we can not act like we are in some small southern town in the south back in 1951 where the effort is about “getting the n* word” as opposed to about being consistent with judicial forms.

    That seems to be something that these good ole boys in our government have forgotten or wish not to remember just because these are foreigners.



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