Juridicality and territory

Do laws extend beyond the territorial borders of the country issuing them? For example, does the US Constitution extend beyond its borders?

A recent case illustrates that they do, and also illuminates some recent assertions by the Obama administration that are perhaps surprising. If you thought Obama, while not perfect, was at least fairly liberal, the facts of this case may surprise and shock you.

The Obama administration has disclosed that it intends to assassinate an American if it can, without due process. This American citizen currently resides in Yemen and is obviously unable to personally file suit in protest of this. Therefore the ACLU and the Center for Constitutional Rights have filed suit, in conjunction with the man’s father.

The US citizen in question is Anwar Awlaki, and he is currently believed to be in Yemen, a country the USA is not a war with (or within).

Regarding the applicability of Constitutional rights for Americans outside US borders, constitutional lawyer Glenn Greenwald observes:

Periodically, I hear some people assert that American citizens have no Constitutional rights once they physically leave the country.  Just as is true for the ludicrous claim that the Constitution only applies to American citizens — a proposition which has been squarely rejected by the Supreme Court for more than a century, which has held that it applies equally to non-citizens on American soil — this notion that the Constitution extends only to America’s borders is rooted in pure ignorance of the law.

Now I am not a lawyer so I take this at face value, but nevertheless the argument seems sound, because as he goes on, quoting from various legal cases:

It is “well settled that the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed against United States citizens.” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 167 (2d Cir. 2008) (discussing the applicability of the Fourth Amendment to citizens abroad [emphasis added]); see also Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion) (“[W]e 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.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990) (“[Reid v. Covert] decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments”).

There are thus two issues here: 1) the Obama administration’s shocking assertion of its right to assassinate, outside the battlefield, an American; 2) the applicability of the Constitution beyond the territory. I cannot think of a precedent for this lawsuit, and its importance is scarcely possible to overstate. Whether 1) or 2) will prevail will indicate just what the “war on terror” means for our rights and freedoms.


One response to “Juridicality and territory

  1. Pingback: ‘Juridicality and Territory’ – a brief historical response | Progressive Geographies

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