JURIST Guest Columnist Kermit Roosevelt of the University of Pennsylvania Law School says that the question of whether the US government can seize aliens and put them beyond the reach of law goes to the heart of who we are and what we want to become…

Today, October 5, law schools, colleges and seminaries around the country are hosting a Guantanamo teach-in, a national effort to shed light on the questions raised by the detention of alleged “enemy combatants” in the U.S. naval base at Guantanamo Bay. There are certainly many questions to which the public deserves answers. Who are the detainees? What are we doing to them? And are we giving them any real chance to prove their innocence?

But there is a more fundamental question that is worth considering first and that may illuminate some of the others, or at least affect the way we think about them. The first question we should be asking is why we are talking about Guantanamo at all. Why are these matters being debated in the context of a U.S. naval base located in, of all places, Cuba?

The answer is quite simple, and it was stated cleanly by Justice Antonin Scalia, dissenting in Rasul v. Bush. By holding that aliens detained in Guantanamo could seek review of their detention by filing habeas petitions in federal court, Scalia wrote, the Supreme Court had “subject[ed] Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus ma[de] it a foolish place to have housed alien wartime detainees.” Had Rasul gone the other way, that is, Guantanamo would have been a wise place to house detainees. It would have been wise because there would have been no possibility of judicial oversight.

Why would that be? Scalia’s argument relied on what is known as the presumption against extraterritoriality—the principle that in the absence of express indication, federal law does not apply to conduct abroad. Historically, the principle applied not only to federal statutes but also to the Constitution, so that, as the Supreme Court put it in the 1891 case In re Ross, “[t]he Constitution can have no operation in another country.” Guantanamo seemed like an ideal place for detentions because its inmates would have neither constitutional rights regulating their treatment by the government, nor the ability to use federal courts to enforce any other rights (such as those available under Common Article 3 of the Geneva Conventions) that they might have.

The conclusion is troubling, of course. There have been many complaints about the “law-free zone” or “legal black hole” that the executive branch sought to create, and I will get to that point soon. But the spectacle of the government choosing to detain people in a particular location primarily, if not solely, in order to evade legal restrictions deserves attention in its own right. In a nation committed to the rule of law, this is alarming behavior. Law is supposed to be a good thing, and obedience to it is desirable on the part not just of individuals but also of the government. The fact that the government is bound by law is one of the distinguishing features of the American system. A strategic choice to take advantage of a territorial limitation on constitutional rights is not the sort of behavior that should be applauded.

But does that territorial limitation even exist? In 1891 the Supreme Court certainly thought so, but in 1957 it changed its mind. In the case of Reid v. Covert, the Court held that Americans abroad still enjoyed the protections of the Constitution in their interactions with the U.S. government. Territoriality no longer controls with respect to Americans. The Court has suggested that it still does with respect to non-citizens, but having renounced territoriality as a general theory, it no longer has much of an explanation why it should apply only to aliens. Citizens and non-citizens alike are protected by the Constitution within the U.S., unless the language of a particular provision restricts its application, so why should geography make a difference?

This question may not have much relevance for the Guantanamo detainees. Guantanamo is subject to complete United States jurisdiction and control, and the Supreme Court in Rasul seemed ready to treat it as part of the United States for constitutional purposes. But it does have relevance for aliens detained in locations that are less controversially abroad, and also, perhaps, for how we think about the entire venture of extraterritorial detention. (Perhaps not as much relevance as it used to, given the recent Military Commissions Act limiting judicial review for aliens.)

The presumption against extraterritoriality comes from the somewhat esoteric field of conflict of laws. In that field, however, it has been largely abandoned in favor of a more flexible analysis that determines the scope of rights by inquiring into their purposes. Rights are created for reasons, and modern conflicts thinking suggests that the way to determine who should be able to assert them is to ask whether their assertion would promote the reasons behind them.

The most relevant constitutional provision is probably the Due Process Clause, which the Supreme Court used in the domestic context to stamp out abusive police interrogation practices. So one useful way to think about extraterritorial detentions is to ask what the purpose of the Due Process Clause is.

That purpose is not just to protect citizens; if it were, the clause would presumably contain an explicit restriction, as some clauses do. Indeed, the Supreme Court has made clear that it protects non-citizens within the United States. It might well be that the extension of due process rights to such people can be explained in terms of benefits for citizens—aliens are more likely to immigrate or travel here if they have some protection against official brutality. But I like to think that another concern stems from the nature of the United States government as the creation and servant of the people. Everything the government does, it does in our name; every power it wields, we have given it. The Due Process Clause, on this view, reflects a judgment that we do not want the government to behave arbitrarily or despotically, that we want governmental power to remain subordinate to the rule of law.

Whether this view of the Due Process Clause is correct is of course an open question. It is one that we struggle with every time some emergency seems to present a threat best dealt with by unfettered executive discretion. The American identity changes over the years, as generation succeeds generation, and the choice we are making now will do much to define it for the near future. Whether our government can seize the citizens of allied countries and place them beyond the reach of any law is from one perspective a technical legal question. From another, it is the uniquely persistent question for a self-governing people, that of who we are, and who we want to be.

Kermit Roosevelt is a professor at the University of Pennsylvania Law School, where he teaches constitutional law. His most recent book is The Myth of Judicial Activism.
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