Ought the Constitution Follow the Flag?

by Kal Raustiala

Reading over the last few posts, it seems very clear that there is an array of extremely interesting angles to the question of whether the Constitution ought to follow the flag in all instances. Tim, Peter, David, and Bill all have raised great questions about the normative dimensions of extraterritoriality and intraterritoriality. In my book I generally eschewed this dimension, though in the conclusion I discuss it a tiny bit. (I have also written about the GTMO context in “The Geography of Justice,” Fordham Law Review 2005). But I can’t say I have given this topic nearly enough thought. Nonetheless, this is a good opportunity to ponder some of these questions.

As to the connection between 14th Amendment and the Insular Cases, Christina Burnett  has written what I think is a pretty definitive treatment in the current issue of the Columbia Law Review. She sees many parallels, and also takes issue along the way with the conventional understanding of the Insular Cases. Since Christina is probably the world’s leading expert on the Insular Cases, I think her views are worth careful attention.

The second broad issue raised in the posts concerns whether it is perhaps wrong to view the denial of incorporation—that is, the denial of the full Bill of Rights—as a wholly bad thing. Perhaps solicitude for local custom and differing norms requires that we sometimes not extend the Bill of Rights to all American territory. There are cases concerning US possessions in the Pacific that to some degree consider this issue. In King v. Andrus, for example, the district court carefully considered indigenous cultural practices in Samoa in deciding whether it would be impractical to apply the right to a jury trial. (It was not impractical, the court decided).

Putting aside the details of King, at first blush I see some merit to the multiculturalist view. But, I think much turns on how the particular territory was acquired. If a territory is conquered, or acquired from another conqueror (e.g., occupied Berlin, the Philippines) then it seems more appropriate to weigh local norms and practices. The people in question did not consent to be governed. But if a territory willingly joins the union (Texas), less so. It is arguably part of the bargain of membership (this is basically the EU practice, for example). This logic, applied for example to Indian country, would suggest substantial deference to local custom or preference, and indeed that is what we see in, say, the 1st Amendment context. That said, deference to local custom can quickly morph into paternalistic and self-serving denial of justice. It is not obvious how we police this.

Status of Forces Agreements raise different issues. Off the top of my head I don’t find SOFAs to be problematic in the abstract, though in extreme cases (where foreign troops are completely outside any local control whatsoever, as was the case in Iraq) they look like naked exercises of power. At the same time, though, I don’t think acceptance of SOFAs supports a more general norm, as Peter alludes to, of a separate legal system for foreigner-on-foreigner crime. I think if one Nigerian assaults another on the streets of New York it is entirely appropriate to arrest and try him/her via the normal rules of American law.

Why then is the same scenario, with two American soldiers, different? Only because it is a necessary part of the security bargain in places like Japan or Germany, and arguably in the interests of both nations, as well as neighbor nations. This is maybe pure foreign affairs exceptionalism, but I think the reality is absent SOFAs we would see a much smaller American military presence abroad, and that in turn would, in many parts of the world, have seriously detrimental effects on regional security. I don’t see that countervailing factor in ordinary crimes by aliens against aliens. (Also, foreign stationed troops live far more separate lives than do ordinary migrants, so the spillover effects of such a rule are smaller too).

As these sketchy comments suggest, there is a lot more thinking to do here.


6 Responses

  1. Prof. Raustiala,

    If I may interject into the discussion with two brief comments:

    First, have you considered in your book the parallels between the questions surrounding the extraterritorial application of the US Constitution, and the Bill of Rights specifically, and those surrounding the extraterritorial application of human rights treaties, e.g. the ECHR. Though the case law on the latter is itself quite convoluted and contradictory, and some basic concepts are contested, there is still a trend there towards applying HR treaties in extraterritorial situations, particularly when a state exercises effective overall control of a area outside its territory (see, e.g. Loizidou re Turkey and Northern Cyprus before the European Court, and the Wall AO and Congo v. Uganda before the ICJ). In this line of cases, which is in my view fundamentally correct, it is the state’s control over a territory and its inhabitants as a matter of fact, irrespective of legal entitlement, that warrants the extraterritorial application of HR treaties. Wouldn’t you say that Boumediene and its notion of de facto sovereignty have taken US constitutional law in the same direction?

    Second, I wonder whether you’d have some comments on the relevance of citizenship on the extraterritorial application of the Bill of Rights in particular. I was amazed, for instance, how Boumediene’s 5:4 ruling that aliens in Guantanamo have the right to habeas corpus was so hotly contested, while the Munaf and Geren unanimous ruling that US citizens detained in Iraq do have a constitutional right to habeas corpus was not. This, in my view, goes to a fundamental normative or value viewpoint – is the US Constitution, and the Bill of Rights in particular, a kind of a social compact that guarantees certain rights only to the members of that contract, or is it an embodiment of universal values, of human rights rather than civil rights, protecting anybody from an arbitrary interference by a government. Do you have any thoughts on this?

  2. Response…

    Marko (if I may), I did not address the issue of human rights treaties directly in the book, though I agree with you that there are many important parallels. And I do think that in a broad sense Boumediene tracks these developments elsewhere, though the approach and analysis are somewhat different.  On your second point, my book discusses at length the issue of a social compact view vs other (perhaps universal) views of the Constitution. That is a reccuring theme. On citizenship per se, I would point you to the work of OJ’s own Peter Spiro and also Gerry Neuman’s wonderful book Strangers to the Constitution, from which I drew much inspiration. There is no question in my mind that citizenship is essential to understanding many of the Supreme Court’s rulings in these territorial cases, and so there is a complex relationship between territoriality in the Westphalian sense and much older concepts of personality based jurisdiction.

  3. Kal,

    Thanks for the response. Yes, citizenship most certainly does play a central part in US jurisprudence and thinking generally about the extraterritorial applicability of the Constitution – the best example is probably Justice Jackson’s opinion for the Court in Eisentrager, with the references to Paul, the Romans and what have you. But, of course, just saying that citizenship mattered a great deal at some point in history doesn’t entail that it should matter today. So, purely as a normative matter – do you personally think that citizenship should matter or not, e.g. in regard of extending habeas corpus to overseas detainees?

    Anyway, as for your reference to personal jurisdiction – assuming (perhaps wrongly) that you referring to international law notions, I am personally not sure that the extraterritorial applicability of the Constitution did ever depend in reality, or should so depend, on the international legal doctrine of state (prescriptive and enforcement) jurisdiction, which delimits the municipal legal orders of states. It is certainly true, for example, that a state has the right to legislate for its nationals, i.e. to specify what their constitutional rights are. But it has the equal right to legislate for its nationals when they are in the position of violating somebody else’s rights – e.g. US troops in Guantanamo or in Iraq. In other words, the international law of jurisdiction, whether modern or XIX century or what have you, doesn’t really have anything to say on whether the US Bill of Rights should protect aliens detained overseas by US forces. Nor would the sovereignty of say Cuba or Afghanistan be in any way impinged if the US Constitution commanded US troops in Cuba or Afghanistan to do X or not to do X. Do you agree?

  4. During WWII, if an American GI in England committed a crime, he was subject to US Court Martial and not local British law. More to the point, if members of the armed forces get into trouble inside the US, they are subject to military justice rather than State civilian justice. If an enemy solider commits a war crime like rape, he is also tried in a military court and not the local civilian system.

    SOFA is not the naked exercise of power. It is simply a formal recognition that wherever military forces are deployed, they are subject to military justice and not local civilian jurisdiction.

    Marko: Munaf does not assert that US citizens held overseas by US military forces have a constitutional right to habeas. Read the first sentence of the holding: “The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command.” This is a ruling about the scope of the statutory language and not about any constitutional issue.

    Boumediene never uses the term “right” to refer to an individual’s access to habeas. The decision consistently refers to the term used in the Constitution, “privilege”. The key holding is: “Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.”

    The privilege of habeas is to seek, not necessarily obtain the writ. Common law habeas as mentioned in the Constitution is a power of the court and not a right of the individual. If the judge finds that the legality of the detention is self-evident, he need not issue the writ.

    The Founding Fathers were not satisfied by the record of English courts protecting individual liberty. That is why one of the first laws passed by Congress extended and standardized habeas by statute. We have not seen common law habeas (stripped of statutory extensions) since the country was founded, until it began to be exercised in the DC Circuit after Boumediene.

    It is therefore not surprising that it would be more controversial to initiate something that has existed but never actually been used since the founding of the Republic (common law habeas) than to simply interpret the text of a familiar statute to extend to Camp Cropper.

  5. At the risk of slightly hijacking the post, I would like to come in with a comment on SOFAs. Peter Spiro earlier posed the question whether SOFAs are “normatively problematic”, noting that “there are obvious pathologies to the arrangements in Iraq”. These are interesting questions, but they need to be considered in context.
    The jurisdictional arrangements found in SOFAs are the product of past practice and present political bargaining. Several distinct jurisdictional regimes have emerged since the end of the Second World War to govern the legal position of foreign armed forces present at the invitation of the territorial sovereign in different operational contexts. The two most famous and well-established of these regimes are based on the relevant provisions of the NATO SOFA of 1951 and the UN Model SOFA of 1991. Other regimes can be identified as well, such as the frequent conferral of immunities equivalent to those granted to technical and administrative staff under the Vienna Convention on Diplomatic Relations. There is sufficient evidence to characterise some of these regimes as reflecting or codifying (as the case may be) rules of customary international law. For instance, there is little difficulty in showing that the right of sending States to exercise exclusive criminal jurisdiction over troops deployed in peace support operations forms part of customary international law and should govern the status of such troops in the absence of an applicable SOFA. In addition, looking at international practice relating to visiting forces as a whole, a strong argument can be made that a principle of customary international law exists whereby the jurisdictional privileges and immunities enjoyed by visiting armed forces depend on the operational context of their deployment abroad. Crudely put, the more dangerous the deployment is, the broader the scope of the privileges and immunities the forces enjoy should be.
    As jus dispositivum, these legal regimes and principles only constitute a starting point for the negotiation of SOFAs in particular cases. There is nothing to prevent sending States and receiving States from adopting different legal arrangements than those that would “normally” apply. This is a crucial point. The question whether or not the arrangements in Iraq are pathological or “look like naked exercises of power” as Kal Raustiala has suggested has two aspects – a legal and a political one.
    Concerning the legal aspect, the US-Iraqi SOFA is not that extreme at all when seen as an evolution from the far more biased arrangements usually found in post-conflict/occupation circumstances, as demonstrated for instance by CPA Order 17, UNMIK Regulation No 2000/47 or indeed some earlier precedents, such as the civil administration agreements concluded between the Allied Powers and certain yet-to-be liberated Allied countries during 1944. Given the operational context in Iraq, it would be wrong to compare the jurisdictional provisions of the US-Iraqi SOFA to those of the NATO SOFA – rather, they should be compared to the UN Model SOFA.
    Concerning the politics, whether or not a given SOFA is equitable depends on the overall political, military, legal and economic relations between the contracting parties. If a State is desperate to host foreign forces in its territory, it is likely to be more willing to pay a higher price for this. Incidentally, this is why during the Second World War the UK granted the US military authorities exclusive jurisdiction over American forces stationed in the UK in criminal matters under the United States of America (Visiting Forces) Act 1942, but did not grant such rights to the military authorities of lesser Allied Powers.
    I have only recently got my hands on a copy of Does the Constitution Follow the Flag? and have not yet found the time to read it. Consequently, I do not know what, if anything, that book says about SOFAs in the context of extra-territoriality and the law of the flag. Personally, I do not find these two concepts very useful in explaining the legal position of visiting armed forces, other than in historical terms. In the past, a good number of writers have relied on extra-territoriality (eg Oppenheim in his first edition of International Law), but the coherence of that concept leaves much to be desired and in any event it has not found much following in the case-law and other forms of State practice. The concept of the law of the flag is similarly unhelpful, first, because it has no settled meaning and, second, because it conflates two distinct issues: the competence to exercise jurisdiction over visiting forces and the right to exercise that competence. The difficulties posed by this concept are vividly illustrated by the judgments of the Rome Court of Assizes and the Italian Court of Cassation in the Calipari/Lozano case. (I am currently writing a piece on this, should anyone be interested.)
    Returning to the question of why crimes committed by foreign soldiers should be treated differently from crimes committed by foreign civilians, to my mind the answer is straightforward. Soldiers normally carry guns, they may drive tanks, they may need store ammunition. This, amongst other things, sharply distinguishes your average foreign soldier from your average foreign tourist. Clearly, local laws and regulations on gun control will apply to the latter, but do they apply to the former without some exceptions or modifications? One function of SOFAs is to address these practical or technical matters. Their other main function, and this is where the jurisdictional arrangements come in centre stage, is to give effect to such general principles as State immunity, State responsibility and the functional immunity of State agents.

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