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Terrorism And Territoriality – Ten Years After 9/11—A Commentary by Jeffrey A. Meyer ’89

The following commentary was published in the Connecticut Law Tribune on September 12, 2011.

Terrorism And Territoriality – Ten Years After 9/11
By Jeffrey A. Meyer '89

The horror of Sept. 11 understandably prompted the United States to strike out at terrorists abroad. Apart from deploying our troops, we re-scoped our criminal law internationally. Federal criminal law broadly criminalizes “acts of terrorism transcending national boundaries” and outlaws a variety of terrorist acts in foreign countries.

All this has called into question not just our power to regulate what people do in foreign countries but also what rights foreign citizens have when we investigate or detain them under our laws. Does the Bill of Rights travel with our globe-trotting criminal code? Or is the Constitution consigned to a “no-fly” list — to be stopped at our borders like a tube of oversized toothpaste at an airport TSA checkpoint?

Once upon a time we thought ourselves powerless to regulate what people do in foreign countries. Nearly 200 years ago, Chief Justice John Marshall observed in The Schooner Exchange v. M’Faddon that “the jurisdiction of [each] nation within its own territory is necessarily exclusive and absolute.” And a century later Justice Oliver Wendell Holmes declared in American Banana Co. v. United Fruit Co. that it was “the general and almost universal rule” that “the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done,” not by U.S. law.

But with the rise of American power in the last century, strict territorialism fell out of fashion. Still, the general crime of “terrorism” has yet to enter the pantheon of so-called “universal” crimes that — like piracy, genocide, or slave trading — may be prosecuted in the courts of any nation regardless where the conduct took place. According to the Second Circuit, “‘terrorism’ is a term as loosely deployed as it is powerfully charged,” and “there continues to be strenuous disagreement among States about what actions do or do not constitute terrorism, nor have we shaken ourselves free of the cliché that ‘one man’s terrorist is another man’s freedom fighter.’” United States v. Yousef (2d Cir. 2003).

Nevertheless, for a vast range of specific terrorist acts, we have entered into treaties that permit our prosecution of foreign-based activity. Today, U.S. courts rarely question the authority of Congress to regulate extraterritorial conduct that involves U.S. citizens or some threat to the United States.

If our power to criminalize foreign terrorism has become clearer, the rights of foreign suspects remain murky. The Constitution itself is ambiguous about its geographical reach. As Judge José Cabranes has written in the Yale Law Journal, “determining whether the Constitution has extraterritorial force depends in large measure on how one understands the Constitution — is it a pact between a people and its government, a charter authorizing limited action by a government in the name of the people, or a combination of both?”

Under a “pact” theory, the Constitution speaks only to what the government may do vis á vis the people — “We the people” — of the United States, and it places no restraint on governmental activity abroad, at least as to non-U.S. citizens. By contrast, under a “charter” theory, the Constitution’s protections are in lockstep with its organic delegation of governmental power to regulate in the first place. “The United States is entirely a creature of the Constitution,” and because its “power and authority have no other source,” it follows that wherever it acts our government “can only act in accordance with all the limitations imposed by the Constitution.” Reid v. Covert (1957) (plurality opinion of Justice Hugo Black).

The Supreme Court has yet to resolve the “pact” vs. “charter” debate. More than 20 years ago, a majority of the Court in United States v. Verdugo-Urquidez upheld a warrantless search by the DEA of the Mexican home of a federal drug defendant who was a citizen of Mexico. Four of the justices sided with the “pact” theory to conclude that the Fourth Amendment protects just “the people” of the United States and not a Mexican citizen with no substantial ties here. Two more justices concluded on narrower grounds that the Fourth Amendment’s usual warrant requirement did not apply. In dissent, Justice William J. Brennan insisted both that the Fourth Amendment applied and that a warrant was required, contending that “when we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same.”

Three years ago, a 5-4 majority of the Court ruled in Boumediene v. Bush that foreign-citizen prisoners held on U.S.-controlled foreign territory at Guantánamo have a constitutional right to petition for habeas corpus. The Court reasoned that the United States exercises de facto sovereignty at Guantánamo and that the political branches — simply by relocating their activities to non-U.S. territory — should not “have the power to switch the Constitution on or off at will” to preempt judicial review of their actions.

Ten years after 9/11, it is oft-said that the “war on terror” — unlike conventional war —has few boundaries and may never end. And so the debate will endure about the reach of our laws and the rights foreign citizens may claim against them. •

Jeffrey A. Meyer is a professor at Quinnipiac University School of Law and a visiting professor at Yale Law School. He is the author of “Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law,” 95 Minn. L. Rev. 110 (2010).