Case Summary: Johnson v. Eisentrager

Johnson v. Eisentrager, 339 U.S. 763 (1950) grew out of World War II and dealt with the question of what rights, if any, detained enemy aliens, who had never entered the United States, could claim.  The Court split 6-3.

The Facts: The case involved petitions of habeas corpus from 21 German nationals being held in Landsberg Prison in Germany, then under U.S. control.  They had been captured in China while supporting German forces following Germany's unconditional surrender on May 8, 1945, but prior to the surrender of Japan.  These prisoners were tried and convicted of war crimes by a military commission sitting in China with the express permission of the Chinese Government.  They were repatriated to Germany to serve their sentences.  The German prisoners claimed that their trial, conviction and imprisonment violated Articles I and III of the U.S. Constitutition, the Fifth Amendment, and other provisions of the Constitution and laws of the United States, as well as provisions of the Geneva Conventions. 

Read More

The Obviously Extraterritorial Constitution

As noted in earlier posts, there are open questions about which provisions of the Constitution apply abroad.  However, there are some provisions that quite clearly do - most notably the "Define and Punish Clause" in Article I, Section 8.

This provision provides that Congress shall have the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations[.]"  By its definition, this power applies outside the territorial boundaries of the United States, at least in part.  Congress has used this power, almost since it first met, to punish piracy, among other international crimes.

Today, this clause is used to combat hijacking of aircraft and is the basis for the Maritime Drug Law Enforcement Act, which is the major basis for Coast Guard actions interdicting drugs making their way to the United States, so long as the vessels are captured on the high seas.

Another clause that, on its face, calls for extraterritorial application, is somewhat related - the juries clause of Article III, Section 2.  This clause holds that "The Trial of all Crimes, except in Cases of Inpeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

This clause plainly contemplates that crimes over which the United States has jurisdiction may well be committed outside the boundaries of the States themselves.  At the time of the Founding, there was very little in the way of territory over which the U.S. exercised sovereign control that was not within the boundaries of a state.  The Northwest Territories were the prime example.  However, historical evidence demonstrates that this language applied to those crimes committed on the high seas as well.  Pirates were subject to the jurisdiction of the first district court into which they found themselves brought.

Although not demonstrated by the text itself, it seems self evident that the limits in Article I, Section 9 would apply to the extraterritorial exercises of jurisdiction allowed by Article I, Section 8.  Thus, it seems to me unremarkable to say that the power to "Define and Punish piracies and Felonies committed on the high Seas" is constrained by the Constitution's prohibitions on Bills of Attainder and ex post facto laws.  In other words, the drug runner who was caught on the high seas on October 5, 2006 (the day before the MDLEA went into effect) would have a valid constitutional defense to charges brought under Act.  Likewise, a bill which targeted an individual for punishment by name, even though that individual was living abroad, would be able to successfully argue that the bill contravened Article I, Section 9.

Given this, it seems that the Court's claim in Johnson v. Eisentrager, that the application of the Constitution abroad was so novel that it would have excited debate, does not withstand scrutiny.  Certainly, the idea that enemy aliens captured and held abroad could claim the protection of the Constitution, which was the core question in Eisentrager, might have raised eyebrows in Philadelphia.  But the idea that the Constitution empowered Congress to act outside the United States was self-evident.  And just as self evident, I argue, is the fact that the limits on Congress's power would travel abroad as well.

Recent scholarship, which I will examine in depth in a future blog post, appears to bear this out.  See Professor Nathan Chapman's excellent article, "Due Process Abroad," for more on this historical practice.

The Fourth Amendment Abroad: U.S. Citizens

The majority opinion in Verdugo-Urquidez left two huge questions unanswered.  First, what constitutes "substantial connections" that would satisfy the majority's test?  They never say.  And second, assuming you have "substantial connections," what does that mean for the Fourth Amendment's application?  The majority did not rely on any of the practical problems identified by Justice Kennedy in its holding - it merely held Verdugo-Urquidez lacked any connections that would justify Fourth Amendment protections.

This blog post looks at the second question.  Regardless of what connections the majority would deem to be "substantial" it is unquestionable that citizenship would qualify.  After all, if a U.S. citizen is not among "the people" protected by the Fourth Amendment, who is?

But what does Fourth Amendment protection abroad look like for U.S. citizens?  The Supreme Court has never had occasion to say.  But numerous Courts of Appeals have addressed this question, and they have created a three-tier structure for examining the question.

Read More

What do we mean by "extraterritorial" application?

Today's post will ask a theoretical question - what exactly do we mean when we say a provision of the Constitution applies extraterritorially?  In some cases, like Verdugo-Urquidez, it seems fairly obvious - the search took place outside the United States.  As the Court held, the violation occurs once the search or seizure is accomplished.  If that happens outside the U.S., then we are asking if the Fourth Amendment applies extraterritorially.

But what about the Fifth Amendment's Due Process Clause, or the Self-Incrimination Clause?  The Court was just as clear in Verdugo-Urquidez that a violation of the Self-Incrimination Clause only occurs at trial, when the coerced testimony is introduced.  However, that description does not appear to track the Court's jurisprudence surrounding the Self-Incrimination Clause.  As Professor Mark Godsey persuasively argued in a 2003 law review article, the Supreme Court in 1986's Colorado v. Connelly, shifted the focus of the Fifth Amendment's protections from introduction at trial to the conduct of police during the pretrial interrogation.  479 U.S. 157 (1986).  Given this, if a suspect is interrogated in Romania, may he challenge his confession as involuntary once he's returned to the United States for trial?

The Due Process Clause can be even trickier.  One can argue that it does not even come into play until one enters court.  If this is the case, then almost every application of the Due Process Clause of the Fifth Amendment will not be extraterritorial, since there are very few U.S. courts which sit outside the United States.  (Two notable exceptions are courts martial and military commissions). 

We see this interaction in cases dealing with personal jurisdiction.  The Court has a long history of cases in which it examines whether the Due Process Clause is offended when a foreign company is haled into a state court to face tort liability for actions in a state.  There, the Court asks whether the foreign corporation has "minimum contacts" with the forum to justify applying local laws to its actions.  Interestingly, the Court has never once asked whether such a foreign corporation has "substantial connections" to the United States such that it can claim the protections of the Due Process Clause in the first instance.

There are two potential explanations for this seeming inconsistency: 1) the Court assumes that the Due Process Clause applies because we are in U.S. courts, thus there is no question of extraterritoriality; or 2) the Due Process Clause is a constraint on Government power, a la Black's opinion in Reid, and thus it serves to limit what the Government may do regardless of who is on the other side.  Sadly, the Court has never addressed the question head on.  But some lower courts have.  In those cases, they seem to indicate that the former explanation is the correct one.  They have held that the mere presence of the corporation through their lawyer in Court provides them the connection necessary to assert the Due Process Clause's protections.

It is a fairly unremarkable claim that the Due Process Clause applies in U.S. courts, regardless of who is seeking to enforce it.  Given that, it appears that courts are of the opinion, without directly saying so, that when a foreign corporation challenges the application of a state's long arm statute under the Due Process Clause, they are not asking the Court to apply the Clause outside the United States.

These questions are more than academic.  Professor Godsey concludes that under Supreme Court precedent, if the Connelly view of confessions controls, aliens interrogated abroad would not be able to claim the protections of the Fifth Amendment, contra to the Court's statement in Verdugo-Urquidez.  As for other applications of Due Process, it would help if the Court would take the next opportunity to clarify on what basis foreign corporations claim the protections of Due Process is.  For now, there appears to be a bit of tension between the Court's personal jurisdiction cases, which require only "minimum contacts" and its extraterritorial cases, which require "substantial connections."  Answering the question of what we mean by "extraterritorial" may help resolve this tension.

Further Reading:

Mark A. Godsey, "The New Frontier of Constitutional Confession Law -- The International Arena: Exploring the Admissibility of Confessions Taken By U.S. Investigators Abroad," 91 Geo. L. J. 851 (April 2003).

First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding, Ltd. et al, 703 F.3d 742 (5th Cir. 2012).

Case Summary: United States v. Verdugo-Urquidez

As promised in my inaugural post, here is the first of the in-depth examinations of the cases only briefly mentioned there.  I have decided to start with United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for two reasons: first, it will likely play a large role in any commentary on recently decided cases that I review; and second, it is the starting point for many of the theoretical questions I intend to pose and discuss.  As such, having a familiarity with the case will be useful to readers.

The holding in Verdugo-Urquidez was 6-3, but the Court split 4-1-1-3 in the rationale, with both Justice Kennedy and Justice Stevens concurring for different reasons. [EDIT: Justice Kennedy did formally join the majority - as noted below, however, his concurrence rejects much of Rehnquist's rationale].   As I noted in my earlier post, there is some dispute over whether the Chief Justice’s opinion is a majority or a plurality, with both lower courts and scholars split on the issue.  (For the record, the reporter refers to Rehnquist’s opinion as the opinion of the Court).  On the one hand, Justice Kennedy stated in his concurrence that his views did not differ materially from the Chief’s opinion.  On the other, the rationale relied upon by Kennedy is starkly different.  Regardless, aspects of both opinions have been cited and relied upon by lower courts.

Read More

Does the Constitution follow the flag?

This is the quintessential question this blog seeks to answer.  It is my hope and plan to cover developments in both the law and academia, by reviewing cases and interesting pieces of scholarship that shed light on this question, while also providing my own thoughts and insights, as someone who has been considering the question for over 15 years.

To help get a better grasp of the underlying issues, I thought it would be helpful to give a brief overview of some of the major cases in the area, to see where we've been and where we are going.  I will do more in-depth examinations of each of these cases (and others) in future posts.

One final note before we delve into this post - this is only the briefest of overviews and is far from comprehensive.  Think of it as a journey from Seattle to San Diego - we're not going to identify every little town along the way, but we'll note the major cities on the journey.

In re Ross, 140 U.S. 453 (1891) - Ross dealt with a seaman on an American-flagged vessel in Yokohama Harbor, Japan, who committed murder on board ship.  Under the terms of a treaty with Japan, Ross was tried and convicted in a consular court by the US Consular General.  He was sentenced to death and transferred to the United States. Ross challenged the conviction on two grounds - first, he argued that as a Canadian citizen, he was not subject to the jurisdiction of the consular court.  Second, he argued that he could not be held for the charge except upon presentment or indictment of a grand jury, under the terms of the Fifth Amendment.  The Court rejected both arguments.  As a sailor on an American-flagged vessel, Ross was subject to American law.  As to the claim under the Fifth Amendment, the Court held that "the Constitution can have no operation in another country."  Thus, no one could claim the protections of the Constitution outside the territorial boundaries of the United States.

The Insular Cases, (1901-1923) - The Insular Cases were a series of Supreme Court decisions dealing with the application of the Constitution to the so-called "insular territories," those acquired after the Spanish-American War.  These included, at the time, Puerto Rico, Cuba, and the Phillippines.  Today, they apply with equal force to Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  The cases covered multiple provisions of the Constitution, beginning with the Uniform Duty Clause of Article I, and encompassing the right to a jury trial under the Sixth Amendment.  The Court ultimately concluded that, while fundamental rights would apply of their own force to these territories, procedural rights, like the jury trial, would not apply unless Congress took some affirmative steps.

Johnson v. Eisentrager, 339 U.S. 763 (1950) - Eisentrager addressed the question of whether foreign enemies, who had never set foot in the United States, could claim the protections of the Constitution.  Eisentrager was one of eight German prisoners of war, who were captured and tried by military commission in China and transferred to an American-run prison in Germany for incarceration.  They sought a writ of habeas corpus in the District Court for the District of Columbia, arguing that their trial and continued detention violated Articles I and III of the Constitution, as well as the Fifth Amendment.  The Court denied the claim.  It held that enemy aliens, with no ties to the United States, had no right to claim the protections of the Fifth Amendment.  Two key arguments come from this case: 1) "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." 339 U.S. at 770. In other words, the more contact an alien has with the United States, the greater his claims on the protections of the Constitution; and 2) "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." 339 U.S. 784-785 (internal citations omitted).

Reid v. Covert, 354 U.S. 1 (1957) - Reid actually consolidated two cases, both dealing with wives of servicemen who murdered their husbands while stationed overseas.  Both were tried by military courts martial and sentenced to death.  They argued that such courts martial violated the Fifth and Sixth Amendments.  Here, the Court sided with the women.  In a four-justice plurality opinion, Justice Hugo Black wrote: "At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.  Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.  When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." 354 U.S. at 5-6 (footnotes omitted).  Thus, Justice Black would have emphatically protected the rights, at least of American citizens, to the protection of the Constitution, wherever the United States attempted to prosecute them.  In addressing Ross and The Insular Cases, Black believed they were relics of history and best left there.  "[W]e can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of 'Thou shalt nots' which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments."  354 U.S. at 9.  The second Justice Harlan concurred, but on much narrower grounds.  He argued that the proper way to judge when the protections of the Constitution should apply is when providing those protections would not be "impracticable or anomalous."  In this case, given that the women faced the penalty of death, the Government should be required to transport them home and try them before a civilian court.

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) - Verdugo-Urquidez concerned a claim by a Mexican national that a search of his home, in Mexico, by U.S. Drug Enforcement Agency agents, violated the Fourth Amendment, because they lacked a warrant.  After the search of his home, he was arrested and brought to the U.S. for trial.  He argued that the evidence should be suppressed.  Chief Justice Rehnquist wrote an opinion for four justices holding that the Fourth Amendment did not apply to foreigners who lacked "substantial connections" with the United States.  Specifically, he wrote: "[The Fourth Amendment], by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' ... 'the people' seems to have been a term of art employed in select parts of the Constitution."  494 U.S. at 265.  Thus, because the Fourth Amendment protected only "the people" and since Verdugo-Urquidez's only connection to the United States was his presence for trial, he was not protected.  Justice Kennedy filed a concurring opinion, which provided the fifth vote.  While he stated that his opinion did not differ from Rehnquist's, he relied on Justice Harlan's "impracticable and anomalous" test in Reid, and held that it would be impractical to apply the Fourth Amendment's warrant requirement outside of the United States.  First, there were no judges with jurisdiction to issue such a warrant; second, Mexican notions of privacy might be so foreign to our own as to make a judgment about the reasonableness of the search impossible; and third, applying the Fourth Amendment could interfere with our relations with the Mexican government.

Boumediene v. Bush, 553 U.S. 723 (2008) - Most recently, the Court finally adopted the "impracticable and anomalous" test from Reid when it held that the writ of habeas corpus could not be denied to enemy aliens held in U.S. military custody in Guantanmo Bay, Cuba.  Under the Suspension Clause, the writ of habeas corpus may only be suspended by Congress during times of rebellion or civil unrest.  Furthermore, because the United States exercises de facto sovereignty over the naval base at Guantanamo Bay, the prisoners are, for all intents and purposes, within U.S. territory.  Given this U.S. control, it would not be impracticable or anomalous to extend the writ of habeas corpus to those imprisoned on the island.

This concludes our brief survey of the history of the extraterritorial application of the Constitution.  Thanks for reading this far.  As I noted above, I will be exploring each of these decisions, as well as others, in more depth in future posts.  For now, I welcome any questions or comments.