Chapter 23 - Surveillance Abroad

1
Chapter 23 - Surveillance Abroad

• Part I

2
Reid v. Covert, 354 US 1 (1957)

• What is very unusual procedurally in this case?
• What are the Insular Cases?
• Did Justice Black find that the US constitutional
  requirements for a jury trial applied to US
  citizens abroad?
• What about the constitution in general?

3
Justice Harlan

• The Government, it seems to me, has made an
  impressive showing that at least for the
  run-of-the-mill offenses committed by dependents
  overseas, such a requirement would be as
  impractical and anomalous as it would have been
  to require jury trial for Balzac in Porto Rico. .
  . .
• I do not concede that whatever process is due
  an offender faced with a fine or a prison
  sentence necessarily satisfies the requirements
  of the Constitution in a capital case. . . . The
  number of such cases would appear to be so
  negligible that the practical problems of
  affording the defendant a civilian trial would
  not present insuperable problems.

4
The 4th Amendment outside the US - US v.
Verdugo-Urquidez, 494 US 259 (1990)

• Was the defendant a US person?
• Where was the search?

5
The 4th Versus 5th and 6th Amendments

• ...the people protected by the Fourth
  Amendment, and by the First and Second
  Amendments, and to whom rights and powers are
  reserved in the Ninth and Tenth Amendments,
  refers to a class of persons who are part of a
  national community or who have otherwise
  developed sufficient connection with this country
  to be considered part of that community. The
  language of these Amendments contrasts with the
  words person and accused used in the
  Fifth and Sixth Amendments regulating procedure
  in criminal cases.

6
Domestic Application

• What we know of the history of the drafting of
  the Fourth Amendment also suggests that its
  purpose was to restrict searches and seizures
  which might be conducted by the United States in
  domestic matters. . . . The available historical
  data show, therefore, that the purpose of the
  Fourth Amendment was to protect the people of the
  United States against arbitrary action by their
  own Government it was never suggested that the
  provision was intended to restrain the actions of
  the Federal Government against aliens outside of
  the United States territory.

7
The Prize Cases

• Did the captain's liability depend on an extra
  territorial application of the 4th Amendment?
• Was the statute authorizing the seizures seen as
  an extension of the captain's powers or a
  limitation?
• What would a modern president say about such a
  limitation?

8
Dorr v. United States, 195 U.S. 138 (1904)

• "...we declared the general rule that in an
  unincorporated territory one not clearly
  destined for statehoodCongress was not required
  to adopt a system of laws which shall include
  the right of trial by jury, and that the
  Constitution does not, without legislation and of
  its own force, carry such right to territory so
  situated. 195 U.S. at 149 (emphasis added).
  Only fundamental constitutional rights are
  guaranteed to inhabitants of those territories. .
  . . Certainly, it is not open to us in light of
  the Insular Cases to endorse the view that every
  constitutional provision applies wherever the
  United States Government exercises its power.
• What rights would apply in such territory?
• What are these rights?

9
Johnson v. Eisentrager, 339 U.S. 763 (1950)

• Enemy aliens arrested in China and imprisoned in
  Germany after World War II
• How did the court rule in Johnson?
• How does the court distinguish Reid v. Covert,
  354 U.S. 1 (1957)?
• How would a universal application of the US
  Constitution affect our ability to use the
  military abroad?
• This was the primary precedent until the
  Guantanamo cases

10
What is Really Happening in Foreign Actions?

• Justice Blackmun wrote American agents acting
  abroad generally do not purport to exercise
  sovereign authority over the foreign nationals
  with whom they come in contact.
• What does this mean?
• Is this the key to understanding the
  foreign/domestic constitutional application
  questions?

11
Harbury v. Deutch, 233 F.3d 596 (D.C. Cir. 2000)

• What does this case tell us about the application
  of the 5th amendment to torture of foreign
  nationals done in foreign nations?
• The Detainee Treatment Act of 2005
• No individual in the custody or under the
  physical control of the United States Government,
  regardless of nationality or physical location,
  shall be subject to cruel, inhuman, or degrading
  treatment or punishment.
• We will see how well it was followed