Application of the Due Process Clause to Aliens in U.S. DetentionAbroad

[Volokh, Eugene]

    My sense is that Eisentrager should indeed control here.  A related
question:  Should U.S. courts entertain claims that American actions
overseas violated aliens' due process rights to life, for instance
because the government used excessive bombing against a city, or
excessive force in trying to catch guerillas who were hiding among
civilians?
 
    It seems to me the answer should be "no" -- these judgments are
subject to moral, domestic political, and international political
constraints, and not to domestic courts deciding how the U.S. is to
engage in military actions overseas.  And while I can see some potential
distinctions between shooting at people whom one hasn't yet caught, and
treating people whom one has caught, it seems to me that these
distinctions ultimately don't amount to a constitutional difference.
 
    Eugene

	-----Original Message-----
	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
	Sent: Tuesday, June 15, 2004 2:10 PM
	To: conlawprof
	Subject: Application of the Due Process Clause to Aliens in U.S.
DetentionAbroad
	
	
	I have a constitutional question (apart from the
Commander-in-Chief debate that has been the subject of so much
attention) arising from the Abu Ghraib atrocities and the
Administration's torture memos.  Even the draft DOD torture memo
acknowledges that interrogation techniques that "shock the conscience"
would violate the Due Process Clause of the Fifth Amendment if employed
by the Executive Branch either within the United States or to a U.S.
resident.  The classic case is, of course, Rochin.  That memo, however,
states that nonresident "enemy aliens" do not enjoy any constitutional
rights outside the sovereign territory of the United States.  My
question is whether the Fifth Amendment, of its own accord, imposes any
limitations on the United States's use of interrogation techniques that
"shock the conscience" upon aliens detained in U.S.-run detention
facilities outside the "sovereign territory" of the U.S., e.g., in Iraq
or Afghanistan.
	 
	The Court in Verdugo-Urquidez, in dicta, read Eisentrager as
flatly rejecting "the claim that aliens are entitled to Fifth Amendment
rights outisde the sovereign territory of the United States."  494 U.S.
at 269.  Of course, although Justice Kennedy joined that opinion, his
concurrence suggested that he does not subscribe to such a categorical
view of the Due Process Clause, preferring a more contextual approach in
which the process that is "due" shifts depending on the setting.
Nevertheless, in Zadvydas, the Court (again in dicta) cited both
Verdugo-Urquidez and Eisentrager for the proposition that the "Fifth
Amendment's protections do not extend to aliens outside the territorial
boundaries."  533 U.S. at 693.
	 
	Is that correct -- the Due Process Clause has no application to
aliens outside U.S. "sovereign territory," so that the Constitution
imposes no constraints on how we treat aliens overseas?  Isn't Wouldn't
that conclusion be inconsistent with, e.g., the Court's recognition that
an assertion of personal jurisdiction over a foreign corporation can
violate due process?  See, e.g., Asahi, 480 U.S. 102; Helicopteros
Nacionales, 466 U.S. 408; see also Volkswagenwerk Aktiengesellschaft,
486 U.S. at 705 ("there has been no question in this country of
excepting foreign nationals from the protection of our Due Process
Clause").  And haven't there been cases where the Court has required
just compensation for takings of non-residents' foreign property?
	 
	I know that this question is in play in the Guantanamo cases,
which the Court might decide as early as Monday.  But in the meantime --
and in case the Court does not address that question -- I was wondering
what folks on the list think.
	 
	PLEASE NOTE:  This topic could easily devolve into plenty of
other closely related legal arguments; but I'm hoping to keep it on
point.  Thus, I am not asking whether the Due Process Clause would
prohibit any particular interrogation techniques that the U.S. has used
or approved.  Nor am I asking whether aliens abroad would have a cause
of action in U.S. courts to challenge any Due Process violation.  Nor am
I asking whether Article 16 of the Torture Convention prohibits the U.S.
from interrogation techniques that "shock the conscience."  (I've
tentatively concluded that it does; but that's a whole 'nother debate.)
Nor am I asking whether techniques that shock the conscience violate
customary international law, or jus cogens, or the laws of war.  And I
certainly am not intending to reopen the perrenial debate on this list
about whether these or any other forms of international law have the
force of constitutional law, and/or whether they are the "supreme Law of
the Land."  I also do not mean to ask whether Guantanamo, in particular,
is part of the "sovereign territory" of the U.S. for purposes of
Eisentrager and Verdugo-Urquidez.  I am merely asking whether the Fifth
Amendment itself imposes any limitations on the manner in which the U.S.
interrogates persons detained in U.S.-operated prisons overseas.  Thanks
in advance for any insight.

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