The Extraterritorial Reach of U.S. Law and Constitutional Application
In this chapter, the extraterritorial reach of U.S. law is explored, addressing how U.S. law applies both inside and outside the country. It discusses the application of the U.S. Constitution within and outside U.S. territories, the treatment of non-citizens, the control of U.S. territories, and key legal cases such as Reid v. Covert. The chapter sheds light on the complexities of legal jurisdiction and constitutional rights in various contexts.
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Chapter 7 Chapter 7 THE EXTRATERRITORIAL REACH OF THE EXTRATERRITORIAL REACH OF U.S. LAW U.S. LAW
Application of the US Constitution Inside the US Everyone gets criminal law and civil law protections. Non-citizens have limited rights under immigration law. Outside the US, non-US territory Citizens get the most protection, followed by US persons. Some limitations based on practicality no courts to issue warrants, so 4th amendment becomes good faith. (Discussed later) Non-citizens without ties to the US have no Constitutional rights. Some statutes define US-persons and give them a subset of constitutional rights. An example is a non-citizen who has a permanent residence visa (Green Card).
Application of Statutes Outside the US Flipside of Charming Betsy: The Presumption Against Extraterritoriality. When a statute gives no clear indication of an extraterritorial application, it has none. Morrison v. Nat l Austr. Bank, Ltd., 561 U.S. 247, 255 (2010). The Supreme Court has said that this is a presumption that United States law governs domestically but does not rule the world. Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007). Congress may give foreign nationals access to the US courts but must do so specifically, not by implication.
US Controlled Territory Outside the US The Insular cases The Insular Cases, which arose at the turn of the [twentieth] century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, 3, had entirely different cultures and customs from those of this country. The court used this as a justification for limited constitutional rights. Congress extended citizenship to the remaining territories, most importantly Puerto Rico, thus extending US Constitutional Rights to the now citizens.
The Military Base at Guantanamo Bay Established when Cuba was a US territory. Under US control through an open-ended lease since the US ceded control of Cuba. The Court found that the US retained sufficient control over Cuba for it to be US territory for some purposes, including a right to habeas corpus for the detainees. US military bases also count as US territory for the natural born citizen requirement to be President. McCain was born on the base in Panama.
Reid v. Covert Right to trial by jury for US citizens abroad. There was a tradition of trying camp followers, which included wives, by court marshal when in the field. Eisentrager had previously held that foreign nationals held by the US on foreign soil did not have Constitutional rights. The court found that the Constitution extended to the US military base in Germany. It was possible to provide trial by jury, either by bring a judge to the base or holding the trial in the US. While the court left open whether only the major rights travel, the courts have found that all rights that can travel, do. We will see later that not all rights can travel there is no US court that can issue a search warrant that is good outside the US.
US v. Verdugo-Urquidez, 494 US 259 (1990) Search of a foreign national in Mexico There was no warrant and Defendant moved to exclude the evidence. The court did not reach the question of whether there could have been a warrant because it found that a foreign national on foreign soil does not have US constitutional rights and thus there is no basis for the exclusionary rule.
Hernandez v. United States We have seen Hernandez before. US official (ICE) standing on US soil, shoot foreign national standing on foreign soil. (Across the Mexican border.) Establishes that the 5thAmendment does not cross the border to reach a foreign national. No Bivens claim, since there cannot be a constitutional violation. In my view, this argues against the claim that the US has given permission to be sued for jus cogens claims.
Agency for International Development v. Alliance for Open Society International, Inc., 140 S. Ct. 2082 (2020) plaintiffs asserted that their foreign affiliates located abroad had a constitutional right under the First Amendment to challenge a U.S. policy. The Court, in an opinion by Justice Kavanaugh, rejected their claim: Plaintiffs position runs headlong into two bedrock principles of American law. First, it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U. S. Constitution. As the Court has recognized, foreign citizens in the United States may enjoy certain constitutional rights to take just one example, the right to due process in a criminal trial.
Kavanaugh opinion, continued. And so too, the Court has ruled that, under some circumstances, foreign citizens in the U.S. Territories or in a territory under the indefinite and complete and total control and within the constant jurisdiction of the United States may possess certain constitutional rights. Boumediene [v. Bush, 553 U.S. 723, 755- 771 (2008) (casebook p. 850)]. But the Court has not allowed foreign citizens outside the United States or such U.S. territory to assert rights under the U.S. Constitution. If the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens purported rights under the U.S. Constitution. That has never been the law.
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) The plaintiffs in Kiobel alleged that the defendant corporations aided and abetted the Nigerian military and police in beating, raping, killing, and arresting Ogoni villagers who protested the environmental impacts of oil exploration and production in the Niger delta. Foreign plaintiffs, defendants, and situs. Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.
28 U.S. Code 1350 - Aliens action for tort The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Passed to allow diplomatic personal in the US (who are not US persons or citizens) to sue for torts. Key at this time there was no FTCA or Bivens, so citizens COULD NOT SUE. Intended to avoid diplomatic friction.
The Extra-Territorial Reach of the ATS Had historically been used against pirates. Pirates have no nationality and operate outside territorial waters, so suing them or killing them does not interfere with the sovereignty of any state. Suing foreign nationals for actions in foreign countries does interfere with the sovereignty of other nations. The presumption against extra-territoriality applies to the ATS because it has no language saying it has exterritorial effect. The claims are dismissed.
Is There Anything Left of the ATS? Foreign cubed no action under the ATS Cardona v. Chiquita Brands Int l, Inc., Foreign plaintiffs sued an American corporation under the ATS for conduct in the United States that supported terrorist attacks abroad that injured the plaintiffs. Company allegedly engaged in concerted action with paramilitary forces in Colombia, including acts that plaintiffs alleged to constitute torture and to have resulted in personal injury and death. Chiquita is a US corporation, but the court found that none of the actions that occurred in the US counted as a tort.
Al Shimari v. CACI (still being litigated at the district court) Al Shimari v. CACI was based on actions that at CACI claimed were directed by the US government. The ATS was involved because it was foreign nationals on foreign soil. The court must first decide if a claim of a jus cogens injury implies the right to sue the US. Once that is resolved, the Court will have to clarify how much of a US link is necessary to trigger the Act. It is unlikely that the current Supreme Court will expand the ATS.
When, Under International Law, Congress Can Regulate Extraterritorial Activity (1) the objective territorial principle; The objective territoriality principle provides that 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. (2) the protective principle; The protective principle provides that 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.
(3) the nationality principle; The nationality principle provides that a state has jurisdiction to prescribe law with respect to the activities, interests, status, or relations of its nationals outside as well as within its territory. (4) the passive personality principle; The passive personality principle provides that a state may apply law particularly criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national.
(5) the universality principle. The universality principle provides that, [a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, regardless of the locus of their occurrence. [This would allow actions, including criminal prosecutions, for violations of jus cogens, if Congress choose to do so. Several other countries do allow prosecution for international war crimes and jus cogens violations.] More generally, Congress can do whatever the Supreme Court allows, irrespective of international law.]
THE EXTRATERRITORIAL REACH OF U.S. LAW: SUMMARY OF BASIC PRINCIPLES The Constitution applies abroad to protect citizens, and also to protect aliens who have a substantial connection to the United States. Constitutional protections do not, however, necessarily apply in every particular in every foreign place, even to a citizen or qualifying alien. The scope of its application may depend on pragmatic and political concerns, although the Supreme Court has so held only with respect to the right to petition for a writ of habeas corpus.
There is a presumption against extraterritorial application of a statute. This presumption is a canon of statutory construction, not a limit on congressional legislative power. The presumption may be rebutted by express statutory language asserting extraterritorial effect. It also may be rebutted by implication from the text, context, and purpose of a statute, or, more narrowly, according to Justices Alito and Thomas, from the focus of the statute.
Although a statute may trump international law, and Congress is free to give extraterritorial effect to a law even in violation of international norms, our laws are construed to avoid conflict with such norms if possible. Under international law, Congress may prescribe regulations for activities abroad if the regulations satisfy one of five principles reflecting the legitimate sovereign interests of the United States. If they are consistent with one or more of these principles, they also must be reasonable in the circumstances.
