What is De Facto Sovereignty?

by Roger Alford

I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to noncitizens abroad. This has ramifications far beyond the narrow issue of habeas corpus. So what exactly is de facto sovereignty?

I see several possible interpretations of de facto sovereignty based on my reading of Boumediene: (1) the territorial model; (2) the occupation zone model; (3) the military base model; (4) the effective control model; (5) the physical custody model; and (6) the exercise of power model.

The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.

The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.

The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.

The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that “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.” So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the United States.

The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual’s physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.

The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan’s dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government’s power to enforce the law.

I don’t think it is clear which of these possible definitions future courts will adopt. It really is anyone’s guess. The Court in Boumediene seemed to emphasize a functional, ad hoc approach that would prevent the political branches from exercising power and then manipulating the circumstances under which that power is exercised so as to circumvent constitutional guarantees:

“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.”


9 Responses

  1. Prof. Alford,

    Let me just note in passing, without claiming any particular relevance to the discussion of Boumediene, that the ECHR applies both your ‘effective control’ and ‘physical custody’ models, except they both come under the rubric of ‘effective control’ (over territory in the first instance, over a person in the second).

    I think, although I’m not sure, that the ICCPR does much the same.

    I guess it would be nice to see the Supreme Court fall in line with international law (for once?), but as you say, it is anyone’s guess whether that is what happened. It seems reasonably clear, however, that the Court didn’t refer to international law in this case. Does that mean that any similarities between international law and Boumediene must be merely coincidental? It might not, but I guess there’s no way of knowing, is there?

  2. I’ve quoted you and linked to you here.

  3. I believe counsel for the petitioners advocated for the “narrowest” limited position based on Guantanamo’s unique status.

    Nothing stops them from broadening their attack on custodial facilities outside of Guantanamo, of course, which I fully expect them to do.

  4. I wonder if lower Courts will try to keep it simple and borrow from jurisprudence in cases of states that are not recognized de jure but whose actions within their borders are considered valid state action (like in the old pre-recognition of the Soviet Union days). If I remember those cases right, the effective control model was the strongest model used. That would effect a synthesis between the domestic law position and the international law position. It is not a perfect analogy but it seems to resonate in a similar manner to what the Boumediene court is saying.



  5. There are so many places this is relevant so I am posting this at several places.

    On the prisoner abuse at Bagram as it relates to the possible reach of Boumediene see America’s prison for terrorists often held the wrong men which is a series that just started yesterday.



  6. Ben,

    Thanks. I appreciate it.


  7. Thank you for this. Cited here.

  8. Thanks for this. I’ve written up some comments and observations, and cited this and several other symposium entries, here.

  9. Apologies – the double comment post was unintential. Please feel free to delete the first one, as well as this one when you’re done.


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