Constitution Overseas

The Constitution for the United States contains four provisions that can provide some basis for extending the jurisdiction of the Constitution beyond territorial borders:

1. The power of Congress to declare war and issue letters of marque and reprisal. 2. The power of Congress to punish as crimes ‘piracy and felonies on the high seas’’ and ‘‘offenses against the laws of nations.’ 3. The power of Congress to fund and regulate military forces everywhere. 4. The commander-in-chief power of the President to command those forces.

With those exceptions, the jurisdiction of the Constitution and statutes and official acts under its authority were originally considered limited to the territory of the nation. This included the territory of states, nonstate territories, and was extended, by the law of nations, to coastal waters, naval vessels flying the U.S. flag, and the grounds of U.S. diplomatic facilities abroad.

By international status of forces agreements, such jurisdiction has been partially extended to the grounds of U.S. military bases abroad. It has long been accepted that U.S. law governs U.S. military personnel anywhere they operate, and by extension, certain civilian contractors under the terms of their contracts.

Although it has been generally accepted that U.S. officials have no authority to officially act on foreign citizens on the territories of their own nations, there has been a movement, beginning in the twentieth century, to extend extraterritorial jurisdiction to civilian U.S. citizens abroad, to foreign nationals charged with ‘‘crimes against humanity,’’ and to ‘‘enemy combatants’’ against U.S. forces of any nationality.

The first criminal prosecutions for ‘‘crimes against humanity’’ were in the Nuremberg Trials of German nationals after World War II. The alleged authority for such criminal prosecutions was the unconditional surrender of Germany, which was deemed to have conferred plenary power to the victorious Allies to exercise sovereignty over German territory and its citizens. However, the U.S. Constitution delegates no such power to its officials in such circumstances, even if the surrender could be considered some kind of ‘‘treaty,’’ which it was not, since it was not presented to the Senate for ratification as a treaty. The President as commander-in-chief has authority to command U.S. military forces but no power to command civilians of foreign nations no longer in a state of war against us.

In Reid v. Covert, 354 U.S. 1 (1957) the U. S. Supreme Court reversed a conviction of a civilian resident on a U.S. military abroad and issued a clear statement of its findings:

1. When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. III, 2, and the Fifth and Sixth Amendments . . . . 2. Insofar as Art. 2 (11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is ‘necessary and proper’ to carry out obligations of the United States under international agreements made with those countries; since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution . . . . 3. The power of Congress under Art. I, 8, cl. 14, of the Constitution, ‘‘To make Rules for the Government and Regulation of the land and naval Forces,’’ taken in conjunction with the Necessary and Proper Clause, does not extend to civilians—even though they may be dependents living with servicemen on a military base . . . . 4. Under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States . . . .

On the other hand, in United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the U.S. Supreme court sustained a conviction of a foreign national convicted on the basis of evidence obtained in Mexico without a search warrant, finding that:

The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.

Extension of criminal jurisdiction to civilian contractors associated with the Department of Defense was legislated in the 2000 Military Extraterritorial Jurisdiction Act. Congress knew that it is nearly impossible to charge civilians under the Uniform Code of Military Justice, even if they work alongside active-duty service members. However, since the Constitution only extends to military personnel, this raises a question of whether the contracts of such civilians make them members of the armed forces subject to the jurisdiction of either U.S. military or civil courts. If not, the only authority would seem to be to prosecute them as ‘‘pirates’’ for warlike acts committed without state authority.

U.S. courts have also thus far sustained assertions of authority to tax U.S. citizens on their earnings from sources not only within U.S. territory, but from foreign sources, and not only while residing on U.S. territory, but while domiciled abroad. Since the U.S. Constitution delegates coercive authority only over ‘‘persons’’ and not ‘‘citizens,’’ this would constitute either the extension of U.S. legal jurisdiction to personal jurisdiction over U.S. citizens everywhere, even if they are not contractually part of U.S. military forces, or a conflict with equal protection, which requires equal treatment of persons, not just citizens. U.S. statute does extend voting rights to expatriates in congressional and presidential elections (although the U.S. Constitution delegates power to Congress only to regulate congressional elections), which would avoid violating the principle of ‘‘no taxation without representation’’ but presents an issue of ‘‘jurisdiction creep’’ that has not been adequately tested.

The military actions in Afghanistan and Iraq, and detentions of persons suspected of ‘‘terrorism,’’ has raised several constitutional issues. Many of them center around the availability of due process protection for prisoners held at the Guantanamo Bay base on the island of Cuba. This base is held by the United States under the terms of a simple lease that does not contain a cession of legal jurisdiction over the land leased to the United States. However, such jurisdiction is also not exercised by Cuba. This has created a kind of legal ‘‘no-man’s-land,’’ where U.S. officials have sought to hold detainees as a way to avoid the supervision of any but military tribunals.

On Nov. 8, 2004, Federal District Judge James Robertson ruled that the Bush administration had not followed a lawful procedure in declaring Salim Ahmed Hamdan, held at Guantanamo, an ‘‘enemy combatant’’ who was not entitled to protections and privileges under the Geneva Convention. The ‘‘combatant status review tribunals’’—used by the Pentagon to decide whether to hold detainees—are not a ‘‘competent’’ court to make such a determination, Robertson said. And the military commission process, which prosecutes detainees using secret evidence and unnamed witnesses, ‘‘could not be countenanced in any American court,’’ the judge ruled.

The U.S. Supreme Court held in Rasul v. Bush, 542 U.S. 466 (2004), that non-U.S. citizen prisoners at Guantanamo may file habeas corpus petitions challenging their imprisonment, as well as claims under federal law concerning the conditions of their confinement. Legislation was introduced in Congress to remove such jurisdiction from the federal courts, but the constitutionality of such legislation is itself in doubt.

JON ROLAND

References and Further Reading

• de Vattel, Emmerich. The Law of Nations.(1758) Joseph Chitty, ed. Philadelphia: Johnson, 1883. https://www. constitution.org/vattel/vattel.htm.
• Du Ponceau, Peter Stephen. A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States. Philadelphia: Small, 1824. https://www.constitution. org/cmt/psdp/juris.htm.
• Grotius, Hugo. The Law of War and Peace. (1625). https://www.constitution.org/gro/djbp.htm.
• Stimson, Edward S. Conflict of Criminal Laws. Chicago: Foundation Press, 1936. https://www.constitution.org/ cmt/stimson/con_crim.htm.