Published online by Cambridge University Press: 27 February 2017
In recent years federal courts have faced a growing number of challenges to United States actions abroad. Citizens living abroad have brought claims alleging that their property was unlawfully taken or that their lives were threatened by United States governmental action. Aliens living in foreign countries have also invoked constitutional protections—Nicaraguans have alleged torture and assassination attributed to CIA activities in Central America; a Mexican alleged that his home in Mexico was searched by Drug Enforcement Agency officials without a search warrant; a Lebanese citizen claimed that he was unlawfully arrested and interrogated in international waters by U.S. agents; a Polish refugee tried for hijacking in a special United States court convened in Berlin sought the right to a jury trial. These cases test the extent to which the Constitution limits U.S. conduct abroad.
1 Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984), vacated, 471 U.S. 1113 (1985); Committee of U.S. Citizens in Nicar. v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).
2 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985).
3 United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988), cert, granted, 57 U.S.L.W. 3687 (U.S. Apr. 17, 1989) (No. 88-1353).
4 United States v. Yunis, 681 F.Supp. 909 (D.D.C.), rev’d on other grounds, 859 F.2d 953 (D.C. Cir. 1988).
5 United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin 1979).
6 In re Ross, 140 U.S. 453, 464 (1891).
7 354 U.S. 1 (1957).
8 Restatement (Third) of Foreign Relations Law of the United States §721 comment b [hereinafter Restatement].
9 United States v. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988), cert, granted, 57 U.S.L.W. 3687 (U.S. Apr. 17, 1989) (No. 88-1353); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin 1979); United States v. Yunis, 681 F.Supp. 909 (D.D.C.), rev’d on other grounds, 859 F.2d 953, 957 (D.C. Cir. 1988).
10 Stephan, Constitutional Limits on the Struggle Against International Terrorism: Revisiting the Rights of Overseas Aliens, 19 Conn. L. Rev. 831, 834–42 (1987).
The Supreme Court has recently agreed to review the Ninth Circuit’s ruling in United States v. Verdugo-Urquidez that the Fourth Amendment applies to a search by U.S. government agents of a nonresident alien’s home in Mexico. No. 88-1353, cert, granted, 57 U.S.L.W. 3687 (U.S. Apr. 17, 1989).
11 Johnson v. Eisentrager, 339 U.S. 763 (1950).
12 Landon v. Plasencia, 459 U.S. 21, 32 (1982).
13 Restatement, supra note 8, §722 comment m.
14 354 U.S. 1,6 (1957).
15 United States v. Tiede, 86 F.R.D. 227, 244 (U.S. Ct. for Berlin 1979). See also United States v. Verdugo-Urquidez, 856 F.2d 1214, 1218 (9th Cir. 1988); Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 Va. J. Int’l L. 741, 745 (1980); S. Rep. No. 249, 56th Cong., 1st Sess. 11 (1900), cited in Ragosta, Aliens Abroad: Principles for the Application of Constitutional Limitations to Federal Action, 17 N.Y.U.J. Int’l L. & Pol. 287, 290 (1985).
16 H. Stern, Judgment in Berlin 367–72 (1984).
17 United States v. Calandra, 414 U.S. 338, 348 (1974).
18 Madison to Jefferson, May 13, 1798, quoted in A. Schlesinger, Jr., The Imperial Presidency, at ix (1973).
19 S. Rep. No. 755, 94th Cong., 2d Sess. 9 (1977) (quoting 1954 Hoover Commission on Governmental Organization).
20 T. Sorensen, Watchmen in the Night 18–19(1975); A. Schlesinger, Jr., supra note 18.
21 See Wisotsky, Crackdown: The Emerging Drug Exception to the Bill of Rights, 38 Hastings L.J. 889 (1987).
22 Psychological theories of cognitive dissonance reveal that “dissonance” or inconsistency “among cognitions, ‘gives rise to pressures to reduce or eliminate the dissonance.’ ” R. Cover, Justice Accused 227 (1975); see also L. Festinger, A Theory of Cognitive Dissonance (1957); J. Brehm & A. Cohen, Exploration in Cognitive Dissonance (1967). There is dissonance between our generally held belief that the Government should not torture or assassinate people and a perception that operating in the world requires such nasty action. Given the strength of the view that our enemies are so evil that we must use whatever tactics necessary to overcome them, it would not be surprising if governmental actors resolved the dissonance by concluding that certain evils in the United States also justify unconstitutional conduct. Government officials could also resolve the tension by rationalizing that aliens abroad are not “people” covered by the Constitution, distinguishing them from citizens at home. The point made here is simply that there is a significant danger that the first method of resolution will occur.
23 Stephan, Constitutional Limits on International Rendition of Criminal Suspects, 20 Va. J. Int’l L. 777, 783 (1980).
24 Verdugo-Urquidez, 856 F.2d at 1233 (Wallace, J., dissenting). See also United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904).
25 G. Wood, The Creation of the American Republic 1776–1787, at 283 (1972).
26 Note, Immigration and the First Amendment, 73 Cal. L. Rev. 1889, 1914 (1985).
27 Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 Wm. & Mary L. Rev. 11, 32 (1985).
28 Verdugo-Urquidez, 856 F.2d at 1218–20; 1 J. Story, Commentaries on the Constitution of the United States §340, at 309, quoted in id. at 1220; Note, The Extraterritorial Application of the Constitution—Unalienable Rights?, 72 Va. L. Rev. 649 (1986); Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1081–82 (1985); Henkin, Rights: Here and There, 81 Colum. L. Rev. 1582, 1584–86 (1981).
29 See, e.g., Virginia Declaration of Rights (1776), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 234 (1971).
30 James Wilson of Pennsylvania, a key figure at the Constitutional Convention and Pennsylvania ratifying convention, recognized that a people could, by compact, add new rights and obligations for themselves, but could not discharge the duties arising out of the law of nature “which they previously owed to those, who form no part of the union.” 1 The Works of James Wilson 160 (R. McCloskey ed. 1967). While Wilson was referring to duties owed aliens under the law of nations, that law only made up one part of the law of nature upon which the natural and inalienable rights of all persons were based.
31 Henkin, supra note 27, at 32.
32 Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 50 (1984).
33 Id. at 51–53.
34 A. Bickel, The Morality of Consent 54 (1975).
35 United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945); Omnibus Diplomatic Security and Antiterrorism Act of 1986, §1202, Pub. L. No. 99-399, 100 Stat. 853, 896 (codified at 18 U.S.C. §2331).
36 Stephan, supra note 23, at 788.
38 Verdugo-Urquidez, 856 F.2dat 1229–30.
38 Committee of U.S. Citizens in Nicar. v. Reagan, 859 F.2d 929, 945 (D.C. Cir. 1988) (emphasis by court). A similar Fifth Amendment claim brought by Nicaraguan nationals was also dismissed by the D.C. Circuit, albeit not because noncitizens had no Fifth Amendment rights. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208–09 (D.C. Cir. 1985).
39 United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).
40 United States v. Yunis, 681 F.Supp. 909, 919 (D.D.C. 1988).
41 United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988).
42 An extension of rights to areas or individuals formerly unprotected often creates a backlash seeking to undermine the rights of the original areas or individuals protected. For example, Justice Harlan argued that the wholesale extension of the Bill of Rights to the states led to the dilution of constitutional protections for defendants within the federal system. Williams v. Florida, 399 U.S. 78, 117–18 (1970) (Harlan, J., concurring).
43 Stephan, supra note 10, at 850–56.
44 Steagald v. United States, 451 U.S. 204, 212 (1981).
45 The Church Committee, in proposing an absolute ban in the case of assassination, recognized the argument that there might be a truly national emergency, such as a threat posed by Adolf Hitler, where assassination might not be absolutely ruled out. Yet the committee recognized also that it would be better to rule out assassinations entirely, bringing any presidential authorization of such action into conflict with the law, and thus ensure that only where such an action represented an “indispensable necessity” to the life of the nation would the President take such action. See The Intelligence Community 810 (T. Fain, K. Plant & R. Milloy eds. 1977).
46 Lobel, supra note 28.
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