Chapter 23 - Surveillance Abroad
Part I
Reid v. Covert, 354 US 1 (1957)
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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?
Justice Harlan
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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.
The 4th Amendment outside the US - US v.
Verdugo-Urquidez, 494 US 259 (1990)
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Was the defendant a US person?
Where was the search?
The 4th Versus 5th and 6th Amendments
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...‘‘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.
Domestic Application
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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.
The Prize Cases
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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?
Dorr v. United States, 195 U.S. 138 (1904)
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"...we declared the general rule that in an unincorporated
territory— one not clearly destined for statehood—Congress 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. . . . [C]ertainly, 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?
Johnson v. Eisentrager, 339 U.S. 763
(1950)
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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
What is Really Happening in Foreign
Actions?
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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?
Harbury v. Deutch, 233 F.3d 596 (D.C. Cir.
2000)
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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