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

[Bill Funk]

Marty Lederman wrote:

> My question is whether the Fifth Amendment, of its own accord, imposes 
> any limitations on the United States' 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.

Why would it?  First, the applicability of the Due Process Clause should 
not turn on whether government conduct is egregious or not.  In the US, 
all interrogations are subject to the Due Process Clause; those that 
shock the conscience violate the clause.  Thus, whether or not the 
clause is enforceable abroad with respect to aliens, if it is applicable 
at all abroad with respect to aliens, it is applicable in the sense that 
government employees should be concerned with its limits in every case.  
Eugene's point, although he phrased it in terms of whether a person 
would have a cause of action in a US court, is still valid.  If the Due 
Process Clause applies abroad, irrespective of its enforceability, it 
would necessarily mean that killing aliens abroad (like our targeted 
killing of "identified" terrorists abroad) and taking their property 
would be subject to the clause.   Second, the Due Process Clause is but 
one clause in the Fifth Amendment, and if that clause is applicable 
abroad with respect to aliens, then the whole amendment ought to be.  
Moreover, one could extend this to much of the bill of rights, where the 
rights are not textually limited to activities in the United States.  In 
a broader sense, the bill of rights was what citizens demanded as a 
condition of a national government, and its extension to US citizens 
abroad follows from that understanding.  Third, the cases that Marty 
mentions all involve aliens that in some sense are in the United States 
-- to be dragged as a defendant into a court of the United States means 
that at least for juridical purposes you are in the United States, and 
if you own property in the United States, then your property rights 
derive from their situs, not from your residence.  Fourth, the fact that 
the Due Process Clause does not apply to aliens abroad does not 
necessarily mean that US law does not or should not limit how we treat 
aliens abroad.  Thus, Doug Laycock's comments on why courts should be 
able to review detention and interrogation of our prisoners abroad, as 
opposed to battlefield decisions, make sense (although they are still 
controversial), but I don't see the legal right arising from the 
Constitution.  Finally, I abhor torture; we should not do it, whether or 
not it is prohibited by the Constitution, international law, or 
statutory law.  But I do not believe that everything that is evil that 
the government might do is necessarily unconstitutional. 
Bill Funk
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