Our imperial criminal procedure: problems in the extraterritorial application of U.S

Yale Law Journal

Volumn 118, Issue 8, 2009, Pages 1660-1711

  Law, Constitutional ^a   Cabranes, José A ^a  

^a United States Circuit Judge for the Second Circuit   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70349683015     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (287)

1. In this Essay, I expand on themes developed for the Charles Evans Hughes Memorial Lecture at the New York County Lawyers' Association, which was delivered on November 18, 2008. These reflections rely in some measure on the jurisprudence of the court on which I am privileged to serve, including decisions which I have written or in which I have participated. I am grateful to my law clerk Justin Anderson for his editorial assistance.
2. Loughborough v. Blake, 18 U.S. (5 Wheat.) 317,319 (1820).
3. 4 THE PAPERS OF THOMAS JEFFERSON 237-238 (Julian P. Boyd ed., 1951).
4. See, e.g., United States v. Hubbell, 530 U.S. 27,40 (2000).
5. U.S. CONST, amend. IV.
6. Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (internal quotation marks omitted) (quoting Groh v. Ramirez, 540 U.S. 551,559 (2004)).
7. See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Afr. (Fourth Amendment Challenges), United States v. Odeh, 552 F.3d 157 (2d Cir. 2008).
8. In re Ross, 140 U.S. 453,464 (1891).
9. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 211 (2005) ;
10. see JACK GOLDSMITH, THE TERROR PRESIDENCY 64-65 (2007) ;
11. see also David B. Rivkin, Jr. & Lee A. Casey, Op-Ed., Judgment Without Borders, L.A. TIMES, Oct. 6, 2008, at 13 (stating that domestic criminal procedure is ill-suited to accomplish foreign policy objectives).
12. J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 GEO. L.J. 463, 478 (2007).
13. Id.
14. MONTESQUIEU, THE SPIRIT OF LAWS 6-7 (photo, reprint 2005) (1748).
15. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 165 (Ian Shapiro ed., Yale Univ. Press 2003) (1689) ("[T]he laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs, and interests, must be left in great part to the prudence of those who have this power committed to them....").
16. THE FEDERALIST NO. 23, at 126 (Alexander Hamilton) (E.H. Scott ed., 1894) ("The authorities essential to the care of the common defence are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation; because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason, no constitutional shackles can wisely be imposed on the power to which the care of it is committed.");
17. THE FEDERALIST NO. 41, supra, at 224-225 (James Madison) ("Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it, must be effectually confided to the Federal councils.... With what color of propriety, could the force necessary for defence be limited, by those who cannot limit the force of offence? If a Federal Constitution could chain the ambition, or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own Government, and set bounds to the exertions for its own safety.").
18. Kent, supra note 10, at 479.
19. See, e.g., Gerald L. Neuman, Whose Constitution?, 100 YALELJ. 909, 916 (1991).
20. Reid v. Covert, 354 U.S. 1,5-6 (1957) (footnote omitted).
21. Louis Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 WM. & MARY L. REV. 11, 31 (1985) (quoting THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)).
22. Id. at 32.
23. Id.
24. Robert Knowles & Marc D. Falkoff, Toward a Limited-Government Theory of Extraterritorial Detention, 62 N.Y.U. ANN. SURV. AM. L. 637, 666 (2007).
25. Id.
26. Id.
27. Henkin, supra note 18, at 32;
28. see also Gerald L. Neuman, Closing the Guantanamo Loophole, 50 LOY. L. REV. 1,49 (2004) ("The Due Process Clause is phrased in universal terms, protecting any 'person' rather than 'citizens' or members of 'the people.' Nor does its wording specify limitations as to place.").
29. Neuman, supra note 16, at 935.
30. Id. at 935-936 (internal quotation marks omitted) (quoting 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 556 (Jonathan Elliot ed., 1836) [hereinafter ELLIOT'S DEBATES]).
31. Id. at 936 (internal quotation marks omitted) (quoting 4 ELLIOT'S DEBATES 557).
32. 494 U.S. 259 (1990).
33. Id. at 266.
34. Id. at 271. Justice Rehnquist might have stated the position of only a plurality of the Court on this issue, depending on how one interprets the concurring opinion of Justice Kennedy. See id. at 278 (Kennedy, J., concurring).
35. Id.
36. Id. at 281 (Brennan, J., dissenting).
37. Id. at 282.
38. Miranda v. Arizona, 384 U.S. 436 (1966).
39. Am. Banana Co. v. United Fruit Co., 213 U.S. 347,355 (1909).
40. Justice Harlan concurred only in the result. See id. at 359.
41. Id. at 356.
42. Id.
43. Edwin D. Dickinson, Jurisdiction with Respect to Crime, 29 AM. J. INT'LL. 435, 467 (1935).
44. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I J. (ser. A) No.10, at 10 (Sept. 7).
45. Id. at 18-19;
46. see also id. at 20 ("Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.").
47. Id. at 26,31.
48. See Convention on the High Seas art. 11, Apr. 29,1958,13 U.S.T. 2312,450 U.N.T.S. 82.
49. See Michael P. Scharf, The ICC's Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position, LAW&CONTEMP. PROBS., Winter 2001, at 67, 73 ("[T]he now-venerable Lotus principle continues to be cited with approval by the ICJ as well as the U.S. government. Most recently, the International Court of Justice confirmed the continuing vitality of the Lotus principle in its July 8, 1996, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.");
50. see also Niels Petersen, Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation, 23 AM. U. INT'L L. REV. 275, 303 (2008) ("The classical approach to this situation [i.e., the lack of rules governing a certain situation] in international legal scholarship is the application of the Lotus principle. According to this principle, any attempt to constrain the state's freedom of action in the absence of a legal prohibition is a violation of state sovereignty.").
51. Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 NEW ENG. L. REV. 363, 368 (2001) (internal quotation marks omitted); see also Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 GEO. WASH. L. REV. 1333, 1351 & n.114 (2007) (noting that the U.S. government had invoked the Lotus principle in defense of "extraordinary rendition").
52. Scharf, supra note 45, at 368;
53. see also United States v. Yousef, 327 F.3d 56, 103-108 (2d Cir. 2003) (describing universal jurisdiction).
54. See Scharf, supra note 45, at 369;
55. see also United States v. Smith, 18 U.S. (5 Wheat.) 153,161 (1820) ("There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi, is piracy.").
56. Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 788 (1988).
57. Id.;
58. see also Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) ("[F]or purposes of civil liability, the torturer has become-like the pirate and slave trader before him -hostis humani generis, an enemy of all mankind" (internal quotation marks omitted) (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2dCir. 1980))).
59. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003) ("[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.");
60. cf. Sosa, 542 U.S. at 732 ("[F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when §1350 was enacted.").
61. See Brad R. Roth, Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice, 6 J. INT'L CRIM. JUST. 215, 218 (2008) ("In cases of internal [i.e., domestic] human rights and humanitarian law violations so egregious as to inspire universal outrage, states have agreed to expose their agents to the laws and processes of foreign states, notwithstanding the risks posed by differences of values and interests among states. But less extreme internal violations, assessments of which are more likely to be coloured by ideological and political sympathies, remain exclusively matters of state responsibility-with individual criminal responsibility to be determined, if at all, by domestic laws and processes.") ;
62. Scharf, supra note 45, at 371.
63. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, 974 U.N.T.S. 178;
64. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16,1970, 22 U.S.T. 1641, 860 U.N.T.S. 105.
65. International Convention Against the Taking of Hostages, Dec. 17, 1979, 18 I.L.M. 1456, 1316 U.N.T.S. 205.
66. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14,1973,28 U.S.T. 1975,1035 U.N.T.S. 167.
67. Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30,1973, 1015 U.N.T.S. 243.
68. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. NO.100-20 (1988), 1465 U.N.T.S. 85;
69. see also Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980) ("[F]or purposes of civil liability, the torturer has become-like the pirate and slave trader before him -hostis humani generis, an enemy of all mankind.").
70. See United States v. Rezaq, 134 F.3d 1121, 1133 (D.C Cir. 1998) (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §402 cmt. g (1987)). But see United States v. Yousef, 327 F.3d 56, 97 (2d Cir. 2003) ("[C]ustomary international law currently does not provide for the prosecution of 'terrorist' acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.") ;
71. id. at 99 (holding that "reliance on this section of the Restatement (Third) in particular is error because it advocates the expansion of universal jurisdiction beyond the scope presently recognized by the community of States, as reflected in customary international law primary sources"). On the post-war expansion of universal jurisdiction,
72. see Randall, supra note 48, at 815-839
73. Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT'L LJ. 840, 855 (2002).
74. Id. at 856. Casey notes that the attempted Spanish prosecution of former Chilean dictator Augusto Pinochet arose from alleged offenses against Spanish nationals, that the Israeli prosecution of Adolph Eichmann rested on other principles of jurisdiction in addition to universal jurisdiction, and that the Nuremberg trials arose from the surrender of Germany at the end of World War II. Id. at 856-857
75. Id. at 856 (internal quotation marks omitted) (quoting Alfred P. Rubin, Dayton, Bosnia, and the Limits of Law, 46 NAT'L INT. 41,45 (1996/1997).
76. Alfred P. Rubin, Actio Popularis, Jus Cogens and Offenses Erga Omnesí, 35 NEW ENG. L. REV. 265, 280 (2001);
77. see also Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, FOREIGN AFF., July/Aug. 2001, at 86, 96 ("[A]n excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live."). For a considered response to these concerns,
78. see Diane F. Orentlicher, Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles, 92 GEO. L.J. 1057 (2004).
79. Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, 45 HARV. INT'LLJ. 183,222-223 (2004).
80. See CEDRIC RYNGAERT, JURISDICTION IN INTERNATIONAL LAW 96-99 (2008).
81. Dickinson, supra note 39, at 440
82. ; s ee also United States v. Pizzarusso, 388 F.2d 8,10 (2d Cir. 1968) ("[A] state 'has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.'" (quoting RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §33 (1965)));
83. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §402(3) (1987) (" [A] state has jurisdiction to prescribe law with respect to . . . certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests."). As early as the mid-1930s, a leading treatise noted the "tendency in national legislation . . . toward an extension of the exercise of competence to punish crimes by aliens against the security and integrity of the State."
84. Dickinson, supra note 39, at 553. It observed that [m]odern means of communication have increased the opportunities for such crimes and States have naturally reacted to the growing danger to their security in extending the application of their penal laws.... The overthrow of liberal regimes in many countries and the establishment of dictatorships of party or class have led to an increase in the subversive activities of dissenting groups which are frequently conducted from the shelter of foreign territory. Id.
85. Randall, supra note 48, at 788.
86. Christopher L. Blakesley, United States Jurisdiction over Extraterritorial Crime, 73 J. CRIM. L. & CRIMINOLOGY 1109,1137 (1982).
87. Pizzarusso, 388 F.2d at 10.
88. Id.
89. Blakesley, supra note 66, at 1138 (emphasis added) ;
90. see also RYNGAERT, supra note 63, at 96 ("For the operation of the protective principle, actual harm need not have resulted from these acts.").
91. See RYNGAERT, supra note 63, at 97-98.
92. Id. at 99.
93. Blakesley, supra note 66, at 1123.
94. United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945);
95. see also Ford v. United States, 273 U.S. 593, 620-21 (1927) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power.");
96. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §402 cmt. d (1987) (" [A] state may exercise jurisdiction based on effects in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable under §403.").
97. The overseas enforcement of American securities laws, for example, is further complicated by the interaction of American and foreign regulatory bodies. When the Securities and Exchange Commission (SEC) investigates overseas conduct, it often cooperates with its foreign counterparts. Those counterparts are generally able to obtain evidence-both documentary and testimonial-through compulsory process.
98. See Paul R. Berger & Erin W. Sheehy, The Globalization of SEC Enforcement Activities, REV. SEC. & COMMODITIES REG., Oct. 15, 2008, at 243, 244 ("[T]he SEC relies heavily on the cooperation of its counterparts abroad who, unlike the SEC in most circumstances, can obtain documents and testimony from foreign entities and persons through compulsory process."). Because this process differs from that which obtains in the United States, American courts are confronted with the question of whether and when evidence so obtained can be used in a domestic criminal proceeding.
99. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 508 (2003).
100. Blakesley, supra note 66, at 1128-29;
101. see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §402(1)(c) (1987) ("[A] state has jurisdiction to prescribe law with respect to . .. conduct outside its territory that has or is intended to have substantial effect within its territory.").
102. See RYNGAERT, supra note 63, at 76-78;
103. see also Blakesley, supra note 66, at 1126-1127 ("[T]he basis for the expansion of jurisdiction over actions in violation of United States antitrust laws has usually been the objective territoriality principle, in so much as the effect of such violations occurs within United States territory. The same may be said of jurisdiction over violations of the securities laws.");
104. R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws, 33 BRIT. Y.B. INT'L L. 146 (1957).
105. 509 U.S. 764,796(1993).
106. Id. at 799 (quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §415 cmt. j (1987)).
107. Itoba Ltd. v. Lep Group PLC, 54 F.3d 118,122,124 (2d Cir. 1995) (citations omitted).
108. RYNGAERT, supra note 63, at 78.
109. See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 98 AM. J. INT'LL. 820, 848 & n.3 (2004).
110. See, e.g., Elizabeth Burleson, Juvenile Execution, Terrorist Extradition, and Supreme Court Discretion To Consider International Death Penalty Jurisprudence, 68 ALB. L. REV. 909, 910 (2005).
111. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §476 (1987).
112. See id. §476(3).
113. Id. §432(2) cmt. c ("If a state's law enforcement officials exercise their functions in the territory of another state without the latter's consent, that state is entitled to protest and, in appropriate cases, to receive reparation from the offending state. If the unauthorized action includes abduction of a person, the state from which the person was abducted may demand return of the person, and international law requires that he be returned. If the state from which the person was abducted does not demand his return, under the prevailing view the abducting state may proceed to prosecute him under its laws.").
114. 87. 119 U.S. 436 (1886);
115. see also Frisbie v. Collins, 342 U.S. 519, 522 (1952);
116. Pettibone v. Nichols, 203 U.S. 192, 208 (1906) (Harlan, J.) ("[W]hen a criminal is brought or is in fact within the jurisdiction and custody of a State, charged with a crime against its laws, the State may, so far as the Constitution and laws of the United States are concerned, proceed against him for that crime, and need not inquire as to the particular methods employed to bring him into the State.");
117. cf. The Ship Richmond v. United States, 13 U.S. (9 Cranch) 102, 104 (1815) (Marshall, C.J.) ("The seizure of an American vessel within the territorial jurisdiction of a foreign power, is certainly an offence against that power, which must be adjusted between the two governments. This Court can take no cognizance of it; and the majority of the Court is of opinion that the law does not connect that trespass, if it be one, with the subsequent seizure by the civil authority, under the process of the District Court, so as to annul the proceedings of that Court against the vessel.").
118. United States v. Rezaq, 134 F.3d 1121, 1130 (D.C Cir. 1998) (internal quotation marks omitted) (quoting Frisbie, 342 U.S. at 522) ;
119. see also id. ("This general rule does admit of some exceptions; for instance, an extradition treaty may provide that it is the only way by which one country may gain custody of a national of the other country for the purposes of prosecution, and we have also suggested that there may be a very limited exception for certain cases of torture, brutality, and similar outrageous conduct." (citations omitted)).
120. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); United States v. Alvarez-Machain, 504 U.S. 653 (1992).
121. . Alvarez-Machain, 504 U.S. at 670.
122. See id. at 669;
123. see also Ker, 119 U.S. at 444 ("It must be remembered that this view of the subject does not leave the prisoner or the government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and on demand from Peru, Julian [the abductor], the party who is guilty of it, could be surrendered and tried in its courts for this violation of its laws.").
124. Sosa, 542 U.S. at 698. 93. Id. at 738.
125. 26 U.S. (1 Pet.) 511 (1828);
126. see also U.S. CONST, art. IV, §3, cl. 2 (granting Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States").
127. Canter, 26 U.S. (1 Pet.) at 546.
128. 114 U.S. 15(1885).
129. Id. at 44 (emphasis added).
130. Id.
131. Id. at 44-45;
132. see also id. at 44 ("In the exercise of this sovereign dominion, [the citizens of Utah] are represented by the government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this, as to every power of society over its members, that it is not absolute and unlimited." (emphasis added)).
133. 100. 140 U.S. 453, 479 (1891). The sailor claimed to be a British subject, but the Court treated him as a United States citizen because "[w]hile he was an enlisted seaman on the American vessel, which floated the American flag, he was, within the meaning of the statute and the treaty, an American, under the protection and subject to the laws of the United States equally with the seaman who was native born." Id.
134. Id.
135. Id. at 463.
136. id- at 464 (emphasis added) (citations omitted).
137. Id. at 464-465,480.
138. Id. at 464-465
139. The Insular Cases, also known as the Insular Tariff Cases, comprise approximately twenty-five decisions of the Supreme Court issued between 1901 and 1922.
140. Downes v. Bidwell, 182 U.S. 244 (1901), is recognized as the most important case in the series, and Balzac v. Porto Rico, 258 U.S. 298 (1922), provides "the last significant development in the doctrine." Christina Duffy Burnett, A Note on the Insular Cases, in FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, AMERICAN EXPANSION, AND THE CONSTITUTION 389, 389 (Christina Duffy Burnett & Burke Marshall eds., 2001).
141. Early in the development of this doctrine, which sought to answer the question of whether the Constitution "follows the flag," Finley Peter Dunne's satiric Irish-American political sage,
142. Mr. Dooley, famously quipped, in an observation that would live in history detached from its origins, "[N]o matter whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns."
143. FINLEY PETER DUNNE, DOOLEY ON THE CHOICE OF LAW 52 (Edward J. Bander ed., 1963). A more refined observer of public affairs, then-Secretary of War Elihu Root, remarked, "[A]s near as I can make out the Constitution follows the flag-but doesn't quite catch up with it." STUART CREIGHTON MILLER, BENEVOLENT ASSIMILATION: THE AMERICAN CONQUEST OF THE PHILIPPINES, 1899-1903, at 157 (1982).
144. 182 U.S. 244 (1901).
145. U.S. CONST, art. I, §8.
146. Downes, 182 U.S. at 279 (emphasis omitted).
147. Id. at 282; see supra text accompanying note 99.
148. Downes, 182 U.S. at 282.
149. Id.
150. Id. at 283.
151. Id. at 293 (White, J., concurring). On the misspelling of Puerto Rico's name, see JOSÉ A. CABRANES, CITIZENSHIP AND THE AMERICAN EMPIRE 1 n.1 (1979).
152. Id. In this concurring opinion, Justice White described the nature of the relation between Puerto Rico and the United States in memorable language: [W]hilst in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.
153. Id. at 341-342
154. 115. Id. at 342.
155. . Id. at 372 (Fuller, J., dissenting).
156. Id. at 374-375
157. See Christina Duffy Burnett, "They Say IAm Not an American ⋯ ": The Noncitizen National and the Law of American Empire, 48 VA. J. INT'L L. 659 (2008).
158. . 258 U.S. 298 (1922).
159. See, e.g., Hawaii v. Mankichi, 190 U.S. 197, 211, 217-18 (1903);
160. see also Balzac, 258 U.S. at 310 ("The jury system needs citizens trained to the exercise of the responsibilities of jurors. In common-law countries centuries of tradition have prepared a conception of the impartial attitude jurors must assume. The jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire.").
161. Balzac, 258 U.S. at 304-305
162. 122. Id. at 311.
163. 123. Id. at 312-314
164. 124. 339 U.S. 763 (1950).
165. Id. at 768;
166. see also id. ("Nothing in the text of the Constitution extends [the right of habeas corpus beyond American borders], nor does anything in our statutes.").
167. Id. at 770-771
168. Id.
169. Id. at 772-73;
170. see also id. at 775 ("The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a 'declared war' exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment.").
171. Id. at 776.
172. Id. at 778-779, 781.
173. Id. at 796.
174. Id.
175. Id. at 796-797
176. Id. at 797.
177. 135- 354 U.S. l (1957).
178. Id. at 5-6 (footnotes omitted).
179. Id. at 9.
180. Id. at 12.
181. Id. at 14;
182. see also id. ("None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians.").
183. Id. at 67.
184. Id. at 74 (emphasis added).
185. Id. (emphasis added).
186. Id. at 75.
187. Id. at 77-78.
188. In Jean v. Nelson, the Supreme Court granted certiorari to consider whether unadmitted aliens seeking asylum could challenge the denial of temporary parole under the equal protection guarantee of the Fifth Amendment's Due Process Clause, but the Court decided the case on other grounds. 472 U.S. 846, 854-855 (1985).
189. 494 U.S. 259 (1990).
190. See supra Part I.
191. Verdugo-Urquidez, 494 U.S. at 266.
192. Id. at 274-275
193. Id. at 271. Chief Justice Rehnquist was arguably stating the position of only a plurality on this issue, in light of Justice Kennedy's concurring opinion.
194. See infra text accompanying note 153.
195. Id.
196. Id. at 275 (citation omitted).
197. 153- Id. at 277-278 (Kennedy, J., concurring).
198. 299 U.S. 304, 320 (1936) (recognizing the "plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations").
199. Verdugo-Urquidez, 494 U.S. at 277 (Kennedy, J., concurring).
200. Id. at 278 (quoting Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring)).
201. Id.
202. See id. at 279 (Stevens, J., concurring in the judgment) ("I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches.");
203. id. at 297 (Blackmun, J., dissenting) (" [A]n American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country."). Justice Blackmun, however, thought that the "reasonableness" requirement of the Fourth Amendment applied and had been violated.
204. Id. at 297-298
205. See id. at 281 (Brennan, J., dissenting) ("The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic").
206. Id. at 284.
207. Id. at 285.
208. Id. at 296.
209. Id.
210. 542 U.S. 466 (2004).
211. 548 U.S. 557(2006).
212. 128 S. Ct. 2229 (2008).
213. See U.S. CONST, art. I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
214. Boumediene, 128 S. Ct. at 2253 (emphasis omitted).
215. Id. at 2254-2255
216. Id. at 2255 (internal quotation marks omitted).
217. Id. at 2256.
218. Id. at 2257. The effect of Boumediene on the continued validity of Eisentrager has been questioned by some commentators.
219. See Eric A. Posner, Boumediene and the Uncertain March of Judicial Cosmopolitanism, 2007-2008 CATO SUP. CT. REV. 23, 28-32. The view that Boumediene has undermined Eisenträger is not consistent with the stated position of the Boumediene majority. The majority opinion in Boumediene did not purport to reverse or limit Eisentrager; rather, it relied on Eisentrager to construct the framework that it announced. In the absence of an indication from a Supreme Court majority that Eisentrager no longer carries precedential force, it remains an important guidepost in this area of law.
220. Boumediene, 128 S. Ct. at 2259.
221. Id. at 2262.
222. Id. at 2297 (Scalia, J., dissenting).
223. Id. at 2298;
224. see also id. at 2300-2301
225. Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 280 (1990) (Brennan, J., dissenting) ("Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal statutes." (footnotes omitted)).
226. See supra note 74 and accompanying text.
227. See Andrew Ashworth, Self-incrimination in European Human Rights Law-A Pregnant Pragmatism?, 30 CARDOZO L. REV. 751 (2008);
228. Mike Redmayne, English Warnings, 30 CARDOZOL. REV. 1047 (2008).
229. Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511,542 (1828).
230. Id. at 543.
231. Id. at 546 ("The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government.").
232. Murphy v. Ramsey, 114 U.S. 15,44 (1885).
233. Id.
234. Downes v. Bidwell, 182 U.S. 244, 279 (1901) (Brown, J., announcing the judgment of the Court).
235. U.S. CONST, art. I, §8;
236. see Downes, 182 U.S. at 283 ("Large powers must necessarily be entrusted to Congress in dealing with these problems, and we are bound to assume that they will be judiciously exercised.").
237. In re Ross, 140 U.S. 453,463 (1891).
238. Id. at 465.
239. Id.
240. Johnson v. Eisentrager, 339 U.S. 763,771 (1950).
241. Id. at 776.
242. Id. at 779.
243. Id.
244. Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511,544 (1828).
245. Downes v. Bidwell, 182 U.S. 244, 282 (1901).
246. Id. at 283.
247. Eisentrager, 339 U.S. at 777.
248. Id. at 790.
249. United States v. Verdugo-Urquidez, 494 U.S. 259,274-275 (1990).
250. 354 U.S. 1, 23, 40-41 (1957);
251. id. at 64 (Frankfurter, J., concurring);
252. id. at 65 (Harlan, J., concurring).
253. Id. at 40 (citation omitted).
254. Id. at 49 (Frankfurter, J., concurring in the result) ;
255. id. at 74-77 (Harlan, J., concurring in the result).
256. Boumediene v. Bush, 128 S. Ct. 2229,2253 (2008).
257. Id. at 2262.
258. See supra note 100.
259. 140 U.S. 453,464 (1891).
260. In Downes v. Bidwell, for example, Justice Brown observed that "there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence." 182 U.S. 244, 282 (1901). Among the "natural rights" were the rights to one's own religious opinion and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government. Id. at 282-83. Similarly, the Court observed in Murphy v. Ramsey that "[t]he personal and civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government, State and National." 114 U.S. 15,44-45 (1885).
261. Downes, 182 U.S. at 283.
262. 354 U.S. 1, 77 (1957) (Harlan, J., concurring in the result).
263. Id.
264. Id.
265. Boumediene v. Bush, 128 S. Ct. 2229,2275 (2008).
266. Id.
267. Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511,543 (1828).
268. Downes v. Bidwell, 182 U.S. 244,249 (1901).
269. Murphy v. Ramsey, 114 U.S. 15,45 (1885).
270. 140 U.S. 453,465 (1891).
271. Id. at 480.
272. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As the Ninth Circuit has recognized, "[a] criminal defendant acquires no personal right of redress in suppressed evidence" because the rationale for suppressing unlawfully obtained evidence is to deter official misconduct, not to compensate criminal defendants for the violation. United States v. Rabb, 752 F.2d 1320,1323 (9th Cir. 1984).
273. Johnson v. Eisentrager, 339 U.S. 763, 786-87 (1950) ("It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges. As we observed in the Yamashita case, 'If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions.'" (quoting In re Yamashita, 327 U.S. 1, 8 (1946))).
274. 140 U.S. at 464.
275. See supra text accompanying note 120.
276. Eisentrager, 339 U.S. at 778-779
277. Verdugo-Urquidez, 494 U.S. at 275 (Kennedy, J., concurring).
278. Boumediene v. Bush, 128 S. Ct. 2229, 2261 (2008) (citations omitted). "Werewolves" is a term used to refer to Nazi guerillas who resisted the Allied occupation of Germany. THE OXFORD COMPANION TO WORLD WAR II, at 1268 (LCB. Dear & M.R.D. Foot eds., 1995).
279. Boumediene, 128 S. Ct. at 2261.
280. Id. at 2261-2262
281. Id. at 2262.
282. 354 U.S. 1, 76 & n.12 (1957).
283. Id. at 77.
284. A notable exception to this observation is In re Ross, 140 U.S. 453,464 (1891).
285. See, e.g., Herring v. United States, 129 S. Ct. 695, 700 (2009) ("The fact that a Fourth Amendment violation occurred-i.e., that a search or arrest was unreasonable - does not necessarily mean that the exclusionary rule applies. Indeed, exclusion has always been our last resort, not our first impulse, and our precedents establish important principles that constrain application of the exclusionary rule." (internal citations and quotation marks omitted)).
286. One of the specific contexts where this body of law may continue to be applied is the detention of combatants at Bagram Air Base in Afghanistan. See, e.g., Al Maqaleh v. Gates, No.06-1669, 2009 WL 863657, at *2 (D.D.C Apr. 2, 2009) (holding that habeas corpus review is available to three of four alien petitioners detained at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan).
287. OLIVER WENDELL HOLMES, JR, THE COMMON LAW I (1881).