Extraterritoriality of Federal Law

Extraterritoriality of Federal Law

This chapter focuses on the extraterritorial scope of federal statutes and the U.S. Constitution. The cases below have similarities with the state law choice-of-law cases we analyzed in Chapters 2 and 3, some of which involved conflicts between state law and foreign law. We devote a separate chapter to cases on the extraterritorial application of federal law, however, because they raise special methodological issues and implicate special concerns, including concerns grounded in separation of powers, U.S. foreign policy, and international law.

A.   Extraterritoriality of Federal Statutes

       1.   Territorialism

EEOC v. Arabian American Oil Co.

499 U.S. 244 (1991)

Chief Justice REHNQUIST delivered the opinion of the Court.

These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad. The United States Court of Appeals for the Fifth Circuit held that it does not, and we agree with that conclusion. Petitioner Boureslan is a naturalized United States citizen who was born in Lebanon. The respondents are two Delaware corporations, Arabian American Oil Company (Aramco), and its subsidiary, Aramco Service Company (ASC). Aramco’s principal place of business is Dhahran, Saudi Arabia, and it is licensed to do business in Texas. ASC’s principal place of business is Houston, Texas.

In 1979, Boureslan was hired by ASC as a cost engineer in Houston. A year later he was transferred, at his request, to work for Aramco in Saudi Arabia. Boureslan remained with Aramco in Saudi Arabia until he was discharged in 1984. After filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC or Commission), he instituted this suit in the United States District Court for the Southern District of Texas against Aramco and ASC. He sought relief under both state law and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2000e-17, on the ground that he was harassed and ultimately discharged by respondents on account of his race, religion, and national origin.

Respondents filed a motion for summary judgment on the ground that the District Court lacked subject-matter jurisdiction over Boureslan’s claim because the protections of Title VII do not extend to United States citizens employed abroad by American employers. The District Court agreed and dismissed Boureslan’s Title VII claim; it also dismissed his state-law claims for lack of pendent jurisdiction and entered final judgment in favor of respondents. A panel for the Fifth Circuit affirmed. After vacating the panel’s decision and rehearing the case en banc, the court affirmed the District Court’s dismissal of Boureslan’s complaint.…

Both parties concede, as they must, that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States. Whether Congress has in fact exercised that authority in this case is a matter of statutory construction. It is our task to determine whether Congress intended the protections of Title VII to apply to United States citizens employed by American employers outside of the United States.

It is a longstanding principle of American law “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). This “canon of construction … is a valid approach whereby unexpressed congressional intent may be ascertained.” Ibid. It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963).

In applying this rule of construction, we look to see whether “language in the [relevant Act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” Foley Bros., supra, at 285. We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is “the affirmative intention of the Congress clearly expressed,” Benz, supra, at 147, we must presume it “is primarily concerned with domestic conditions.” Foley Bros., supra, at 285.

Boureslan and the EEOC contend that the language of Title VII evinces a clearly expressed intent on behalf of Congress to legislate extraterritorially. They rely principally on two provisions of the statute. First, petitioners argue that the statute’s definitions of the jurisdictional terms “employer” and “commerce” are sufficiently broad to include United States firms that employ American citizens overseas. Second, they maintain that the statute’s “alien exemption” clause, 42 U.S.C. §2000e-1, necessarily implies that Congress intended to protect American citizens from employment discrimination abroad. Petitioners also contend that we should defer to the EEOC’s consistently held position that Title VII applies abroad. We conclude that petitioners’ evidence, while not totally lacking in probative value, falls short of demonstrating the affirmative congressional intent required to extend the protections of Title VII beyond our territorial borders.

Title VII prohibits various discriminatory employment practices based on an individual’s race, color, religion, sex, or national origin. See §§2000e-2, 2000e-3. An employer is subject to Title VII if it has employed 15 or more employees for a specified period and is “engaged in an industry affecting commerce.” An industry affecting commerce is “any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry ‘affecting commerce’ within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [(LMRDA)] [29 U.S.C. 401 et seq.].” §2000e(h). “Commerce,” in turn, is defined as “trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.” §2000e(g).

Petitioners argue that by its plain language, Title VII’s “broad jurisdictional language” reveals Congress’s intent to extend the statute’s protections to employment discrimination anywhere in the world by a United States employer who affects trade “between a State and any place outside thereof.” More precisely, they assert that since Title VII defines “States” to include States, the District of Columbia, and specified territories, the clause “between a State and any place outside thereof” must be referring to areas beyond the territorial limit of the United States.

Respondents offer several alternative explanations for the statute’s expansive language. They contend that the “or between a State and any place outside thereof” clause “provides the jurisdictional nexus required to regulate commerce that is not wholly within a single state, presumably as it affects both interstate and foreign commerce” but not to “regulate conduct exclusively within a foreign country.” They also argue that since the definitions of the terms “employer,” “commerce,” and “industry affecting commerce” make no mention of “commerce with foreign nations,” Congress cannot be said to have intended that the statute apply overseas. In support of this argument, petitioners point to Title II of the Civil Rights Act of 1964, governing public accommodation, which specifically defines commerce as it applies to foreign nations. Finally, respondents argue that while language present in the first bill considered by the House of Representatives contained the terms “foreign commerce” and “foreign nations,” those terms were deleted by the Senate before the Civil Rights Act of 1964 was passed. They conclude that these deletions “[are] inconsistent with the notion of a clearly expressed congressional intent to apply Title VII extraterritorially.”

We need not choose between these competing interpretations as we would be required to do in the absence of the presumption against extraterritorial application discussed above. Each is plausible, but no more persuasive than that. The language relied upon by petitioners—and it is they who must make the affirmative showing—is ambiguous, and does not speak directly to the question presented here. The intent of Congress as to the extraterritorial application of this statute must be deduced by inference from boilerplate language which can be found in any number of congressional Acts, none of which have ever been held to apply overseas.

Petitioners’ reliance on Title VII’s jurisdictional provisions also finds no support in our case law; we have repeatedly held that even statutes that contain broad language in their definitions of “commerce” that expressly refer to “foreign commerce” do not apply abroad.

The EEOC places great weight on an assertedly similar “broad jurisdictional grant in the Lanham Act” that this Court held applied extraterritorially in Steele v. Bulova Watch Co., 344 U.S. 280, 286 (1952). In Steele, we addressed whether the Lanham Act, designed to prevent deceptive and misleading use of trademarks, applied to acts of a United States citizen consummated in Mexico. The Act defined commerce as “all commerce which may lawfully be regulated by Congress.” 15 U.S.C. §1127. The stated intent of the statute was “to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce.” Ibid. While recognizing that “the legislation of Congress will not extend beyond the boundaries of the United States unless a contrary legislative intent appears,” the Court concluded that in light of the fact that the allegedly unlawful conduct had some effects within the United States, coupled with the Act’s “broad jurisdictional grant” and its “sweeping reach into ‘all commerce which may lawfully be regulated by Congress,’” the statute was properly interpreted as applying abroad. Steele, supra, at 285, 287.

The EEOC’s attempt to analogize these cases to Steele is unpersuasive. The Lanham Act by its terms applies to “all commerce which may lawfully be regulated by Congress.” The Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I, §8, cl. 3. Since the Act expressly stated that it applied to the extent of Congress’ power over commerce, the Court in Steele concluded that Congress intended that the statute apply abroad. By contrast, Title VII’s more limited, boilerplate “commerce” language does not support such an expansive construction of congressional intent. Moreover, unlike the language in the Lanham Act, Title VII’s definition of “commerce” was derived expressly from the LMRDA, a statute that this Court had held, prior to the enactment of Title VII, did not apply abroad. McCulloch, supra, at 15.

Thus petitioner’s argument based on the jurisdictional language of Title VII fails both as a matter of statutory language and of our previous case law. Many Acts of Congress are based on the authority of that body to regulate commerce among the several States, and the parts of these Acts setting forth the basis for legislative jurisdiction will obviously refer to such commerce in one way or another. If we were to permit possible, or even plausible, interpretations of language such as that involved here to override the presumption against extraterritorial application, there would be little left of the presumption.

Petitioners argue that Title VII’s “alien exemption provision,” 42 U.S.C. §2000e-1, “clearly manifests an intention” by Congress to protect United States citizens with respect to their employment outside of the United States. The alien-exemption provision says that the statute “shall not apply to an employer with respect to the employment of aliens outside any State.” Petitioners contend that from this language a negative inference should be drawn that Congress intended Title VII to cover United States citizens working abroad for United States employers. There is “no other plausible explanation that the alien exemption exists,” they argue, because “if Congress believed that the statute did not apply extraterritorially, it would have had no reason to include an exemption for a certain category of individuals employed outside the United States.” Since “the statute’s jurisdictional provisions cannot possibly be read to confer coverage only upon aliens employed outside the United States,” petitioners conclude that “Congress could not rationally have enacted an exemption for the employment of aliens abroad if it intended to foreclose all potential extraterritorial applications of the statute.”

Respondents resist petitioners’ interpretation of the alien-exemption provision and assert two alternative raisons d’etre for that language. First, they contend that since aliens are included in the statute’s definition of employee1 and the definition of commerce includes possessions as well as “States,” the purpose of the exemption is to provide that employers of aliens in the possessions of the United States are not covered by the statute. Thus, the “outside any State” clause means outside any State, but within the control of the United States. Respondents argue that “this reading of the alien exemption provision is consistent with and supported by the historical development of the provision.”… Second, respondents assert that by negative implication, the exemption “confirms the coverage of aliens in the United States.”

If petitioners are correct that the alien-exemption clause means that the statute applies to employers overseas, we see no way of distinguishing in its application between United States employers and foreign employers. Thus, a French employer of a United States citizen in France would be subject to Title VII—a result at which even petitioners balk. The EEOC assures us that in its view the term “employer” means only “American employer,” but there is no such distinction in this statute and no indication that the EEOC in the normal course of its administration had produced a reasoned basis for such a distinction. Without clearer evidence of congressional intent to do so than is contained in the alien-exemption clause, we are unwilling to ascribe to that body a policy which would raise difficult issues of international law by imposing this country’s employment-discrimination regime upon foreign corporations operating in foreign commerce.

This conclusion is fortified by the other elements in the statute suggesting a purely domestic focus. The statute as a whole indicates a concern that it not unduly interfere with the sovereignty and laws of the States. See, e.g., 42 U.S.C. §2000h-4 (stating that the Act should not be construed to exclude the operation of state law or invalidate any state law unless inconsistent with the purposes of the Act); §2000e-5 (requiring the EEOC to accord substantial weight to findings of state or local authorities in proceedings under state or local law); §2000e-7 (providing that nothing in Title VII shall affect the application of state or local law unless such law requires or permits practices that would be unlawful under Title VII); §§2000e-5(c), (d), and (e) (provisions addressing deferral to state discrimination proceedings). While Title VII consistently speaks in terms of “States” and state proceedings, it fails even to mention foreign nations or foreign proceedings.

Similarly, Congress failed to provide any mechanisms for overseas enforcement of Title VII.…

It is also reasonable to conclude that had Congress intended Title VII to apply overseas, it would have addressed the subject of conflicts with foreign laws and procedures. In amending the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621 et seq., to apply abroad, Congress specifically addressed potential conflicts with foreign law by providing that it is not unlawful for an employer to take any action prohibited by the ADEA “where such practices involve an employee in a workplace in a foreign country, and compliance with [the ADEA] would cause such employer … to violate the laws of the country in which such workplace is located.”§623(f)(1). Title VII, by contrast, fails to address conflicts with the laws of other nations.

Our conclusion today is buttressed by the fact that “when it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989). Congress’ awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute.… Indeed, after several courts had held that the ADEA did not apply overseas, Congress amended §11(f) to provide: “The term ‘employee’ includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.” 29 U.S.C. §630(f).… The expressed purpose of these changes was to “make provisions of the Act apply to citizens of the United States employed in foreign countries by U.S. corporations or their subsidiaries.” S. Rep. No. 98-467, p.2 (1984). Congress, should it wish to do so, may similarly amend Title VII and in doing so will be able to calibrate its provisions in a way that we cannot.

Petitioners have failed to present sufficient affirmative evidence that Congress intended Title VII to apply abroad. Accordingly, the judgment of the Court of Appeals is


Justice MARSHALL, with whom Justice BLACKMUN and Justice STEVENS join, dissenting.

Because it supplies the driving force of the majority’s analysis, I start with “[t]he canon … that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” [Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949).] The majority recasts this principle as “the need to make a clear statement that a statute applies overseas.” So conceived, the presumption against extraterritoriality allows the majority to derive meaning from various instances of statutory silence—from Congress’ failure, for instance, “to mention foreign nations or foreign proceedings,” “to provide any mechanisms for overseas enforcement,” or to “addres[s] the subject of conflicts with foreign laws and procedures.” At other points, the majority relies on its reformulation of the presumption to avoid the “need [to] choose between … competing interpretations” of affirmative statutory language that the majority concludes “does not speak directly to the question” of extraterritoriality. In my view, the majority grossly distorts the effect of this rule of construction upon conventional techniques of statutory interpretation.…

[T]he presumption against extraterritoriality is not a “clear statement” rule. Clear-statement rules operate less to reveal actual congressional intent than to shield important values from an insufficiently strong legislative intent to displace them. When they apply, such rules foreclose inquiry into extrinsic guides to interpretation, and even compel courts to select less plausible candidates from within the range of permissible constructions. The Court’s analysis in Foley Brothers was by no means so narrowly constrained. Indeed, the Court considered the entire range of conventional sources “whereby unexpressed congressional intent may be ascertained,” 336 U.S., at 285 (emphasis added), including legislative history, statutory structure, and administrative interpretations. Subsequent applications of the presumption against extraterritoriality confirm that we have not imposed the drastic clear-statement burden upon Congress before giving effect to its intention that a particular enactment apply beyond the national boundaries. See, e.g., Steele v. Bulova Watch Co., 344 U.S. 280, 286-287 (1952) (relying on “broad jurisdictional grant” to find intention that Lanham Act applies abroad).…

Confirmation that Congress did in fact expect Title VII’s central prohibition to have an extraterritorial reach is supplied by the so-called “alien exemption” provision. The alien-exemption provision states that Title VII “shall not apply to an employer with respect to the employment of aliens outside any State.” ([E]mphasis added). Absent an intention that Title VII apply “outside any State,” Congress would have had no reason to craft this extraterritorial exemption. And because only discrimination against aliens is exempted, employers remain accountable for discrimination against United States citizens abroad.

The inference arising from the alien-exemption provision is more than sufficient to rebut the presumption against extraterritoriality.…

Notwithstanding the basic rule of construction requiring courts to give effect to all of the statutory language, the majority never advances an alternative explanation of the alien-exemption provision that is consistent with the majority’s own conclusion that Congress intended Title VII to have a purely domestic focus. The closest that the majority comes to attempting to give meaning to the alien-exemption provision is to identify without endorsement “two alternative raisons d’etre for that language” offered by respondents. Neither of these explanations is even minimally persuasive.

Questions and Comments

(1) Note that the Court in Arabian American Oil considers only whether or not U.S. law applies. It never considers the potential application of Saudi Arabian law. This unilateral conflicts methodology contrasts with the multilateral approaches we saw in most of the choice-of-law cases in Chapters 2 and 3, in which courts consider both local law and foreign law and choose among them. Why might courts invoke a unilateral methodology in cases involving federal-law conflicts with foreign law? Is this phenomenon related to the penal law taboo discussed supra pages 160166? Does it have something to do with not wanting to offend a foreign sovereign by misapplying its law? Does the Court not consider Saudi Arabian law out of deference to the U.S. political branches? Is it better to resolve the applicability of American law unilaterally, or with reference to the laws and interests of other states? For analysis of these issues see McConnaughay, Reviving the “Public Law Taboo” in International Conflict of Laws, 35 Stan. J. Intl. L. 255 (1999); Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Intl. L.J. 101 (1998); Weintraub, The Extraterritorial Application of Antitrust and Securities Laws: An Inquiry into the Utility of a “Choice-of-Law” Approach, 70 Tex. L. Rev. 1799 (1992); Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 Law & Contemp. Probs. 11 (1987).

(2) Arabian American Oil seems to rely on reasoning similar to the Carroll case, which stated at page 15 supra, that “universally recognized principles of private international or interstate law” hold that legislation applies only to local events. For this reason, some scholars view Arabian American Oil an artifact of outmoded territorialist thinking. See, e.g., Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Poly. Intl. Bus. 1 (1992); Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 S. Ct. Rev. 179 (1991). Professor Bradley disagrees. He maintains that the presumption against extraterritoriality applied in cases like Arabian American Oil is grounded less in old territorial assumptions than in separation of powers principles such as a judicial desire not to impinge on political branch prerogatives by violating international law or causing foreign relations controversy. See Bradley, Territorial Intellectual Property Rights in an Age of Globalism, 37 Va. J. Intl. L. 505, 550-561 (1997). Which is the right view? Which finds more support in Arabian American Oil? Why might separation of powers and international relations concerns have more salience in the federal extraterritoriality context than in the context of state choice of law?

(3) In Arabian American Oil, why wasn’t the presumption against extraterritoriality overcome by indications in the statute that suggested an extraterritorial scope? Why does the Court insist that Congress’s intent be “clearly expressed” in the statute? Is this requirement too demanding, as the dissent suggests?

(4) Congress quickly overturned the specific holding of Arabian American Oil concerning the scope of Title VII. In the Civil Rights Act of 1991, Congress amended the definition of “employee” in Title VII to provide that, “[w]ith respect to employment in a foreign country, [the term employee] includes an individual who is a citizen of the United States.” Congress also added the following provisions:

(b) It shall not be unlawful under [this statute]… for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining (including on-the-job training programs) to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located.

(c) (1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by [this statute] engaged in by such corporation shall be presumed to be engaged in by such employer.

(2) [This statute] shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer.

Does this statute show that the Court in Arabian American Oil erred in its original interpretation of Title VII? Or does it show the system of separation of powers working well, because Congress specified Title VI’s extraterritorial scope with a precision that the Court never could have achieved?

(5) The power of the presumption against extraterritoriality can be seen in two recent Supreme Court decisions.

The issue in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), was the extraterritorial scope of §10(b) of the Securities Exchange Act of 1934. Section 10(b) makes it unlawful for “any person” to “use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered,… any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe.…” The lower courts had attempted to infer from this language the particular circumstances under which Congress would have wanted §10(b) to apply to foreign conduct. The Supreme Court rejected this approach. “Rather than guess anew in each case,” it reasoned, “we apply the presumption [against extraterritoriality] in all cases, preserving a stable background against which Congress can legislate with predictable effects.” The Court stated that the presumption “applies regardless of whether there is a risk of conflict between the American statute and a foreign law,” and emphasized that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” The Court also concluded that, at least in the context of §10(b), the mere existence of some domestic activity related to the cause of action (including deceptive practices in the United States) was not enough to overcome the presumption. “[T]he presumption against extraterritorial application would be a craven watchdog indeed,” said the Court, “if it retreated to its kennel whenever some domestic activity is involved in the case.” After concluding that “the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States,” the Court held that the statute “reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States.” For discussion of the presumption against extraterritoriality after Morrison, see Brilmayer, The New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption Against Extraterritorial Application of American Law, 40 Sw. L. Rev. 655 (2011); Colangelo, A Unified Approach to Extraterritoriality, 97 Va. L. Rev. 1019 (2011); Dodge, Morrison’s Effects Test, 40 Sw. L. Rev. 687 (2011).

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), concerned the extraterritorial scope of the Alien Tort Statute (“ATS”), 28 U.S.C. §1350. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004), the Supreme Court held that the ATS, though a mere jurisdictional statute, permits federal courts to recognize private causes of action for a modest number of international law violations under federal common law. The plaintiffs in Kiobel were Nigerian nationals residing in the United States who sued Dutch, British, and Nigerian corporations under the ATS for allegedly aiding and abetting the Nigerian Government in committing violations of the law of nations in Nigeria. The Court held that the presumption against extraterritoriality applied to ATS causes of action, and dismissed the case. It reasoned that the presumption applied with special force in the ATS context because the danger of unwarranted judicial interference in the conduct of foreign policy normally present in the extraterritorial application of a federal statute was “magnified” when the issue was the extraterritorial application of judge-made ATS causes of action. And it determined that the presumption was not overcome either by the original understanding of the statute, or by the term “any” in the phrase “any civil action,” or by the fact that jurisdiction under the statute extended to torts “in violation of the law of nations.” As in Morrison, however, the Court was somewhat vague about when local conduct connected to the cause of action sufficed to render the presumption irrelevant. “[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application,” the Court explained, adding that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” For critical reactions to the presumption against extraterritoriality in Kiobel, see Cleveland, The Kiobel Presumption and Extraterritoriality, 52 Colum. J. Transnat’l L. 8 (2013); Hafetz, Human Rights Litigation and the National Interest: Kiobel’s Application of the Presumption Against Extraterritoriality to the Alien Tort Statute, 28 Md. J. Int’l L. 107 (2013)

       2.   Contacts and Effects

Lauritzen v. Larsen

345 U.S. 571 (1953)

Justice JACKSON delivered the opinion of the Court.

The key issue in this case is whether statutes of the United States should be applied to this claim of maritime tort. Larsen, a Danish seaman, while temporarily in New York joined the crew of the Randa, a ship of Danish flag and registry, owned by petitioner, a Danish citizen. Larsen signed ship’s articles, written in Danish, providing that the rights of crew members would be governed by Danish law and by the employer’s contract with the Danish Seamen’s Union, of which Larsen was a member. He was negligently injured aboard the Randa in the course of employment, while in Havana harbor.…

Respondent brought suit under the Jones Act on the law side of the District Court for the Southern District of New York and demanded a jury. Petitioner contended that Danish law was applicable and that, under it, respondent had received all of the compensation to which he was entitled.…

Respondent does not deny that Danish law is applicable to his case. The contention as stated in his brief is rather that “A claimant may select whatever forum he desires and receive the benefits resulting from such choice” and “A ship owner is liable under the laws of the forum where he does business as well as in his own country.” This contention that the Jones Act provides an optional cumulative remedy is not based on any explicit terms of the Act, which makes no provision for cases in which remedies have been obtained or are obtainable under foreign law. Rather he relies upon the literal catholicity of its terminology. If read literally, Congress has conferred an American right of action which requires nothing more than that plaintiff be “any seaman who shall suffer personal injury in the course of his employment.” It makes no explicit requirement that either the seaman, the employment or the injury have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation—a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording.

But Congress in 1920 wrote these all-comprehending words, not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations.

The shipping laws of the United States, set forth in Title 46 of the United States Code, comprise a patchwork of separate enactments, some tracing far back in our history and many designed for particular emergencies. While some have been specific in application to foreign shipping and others in being confined to American shipping, many give no evidence that Congress addressed itself to their foreign application and are in general terms which leave their application to be judicially determined from context and circumstances. By usage as old as the Nation, such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law. Thus, in United States v. Palmer, 3 Wheat. 610, this Court was called upon to interpret a statute of 1790 (1 Stat. 115) punishing certain acts when committed on the high seas by “any person or persons,” terms which, as Mr. Chief Justice Marshall observed, are “broad enough to comprehend every human being.” But the Court determined that the literal universality of the prohibition “must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them” (p.631) and therefore would not reach a person performing the proscribed acts aboard the ship of a foreign state on the high seas.

This doctrine of construction is in accord with the long-heeded admonition of Mr. Chief Justice Marshall that “an act of congress ought never to be construed to violate the law of nations if any other possible construction remains.…” The Charming Betsy, 2 Cranch 64, 118. See The Nereide, 9 Cranch 388, 423; MacLeod v. United States, 229 U.S. 416, 434; Sandberg v. McDonald, 248 U.S. 185, 195. And it has long been accepted in maritime jurisprudence that “… if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.” Lord Russell of Killowen in The Queen v. Jameson, [1896] 2 Q.B. 425, 430. This is not, as sometimes is implied, any impairment of our own sovereignty, or limitation of the power of Congress. “The law of the sea,” we have had occasion to observe, “is in a peculiar sense an international law, but application of its specific rules depends upon acceptance by the United States.” Farrell v. United States, 336 U.S. 511, 517. On the contrary, we are simply dealing with a problem of statutory construction rather commonplace in a federal system by which courts often have to decide whether “any” or “every” reaches to the limits of the enacting authority’s usual scope or is to be applied to foreign events or transactions.

The history of the statute before us begins with the 1915 enactment of the comprehensive LaFollette Act, entitled, “An Act To promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea.” 38 Stat. 1164. Many sections of this Act were in terms or by obvious implication restricted to American ships. Three sections were made specifically applicable to foreign vessels, and these provoked considerable doubt and debate. Others were phrased in terms which on their face might apply to the world or to anything less.… In 1920, Congress, under the title “An Act To provide for the promotion and maintenance of the American merchant marine…” and other subjects not relevant, provided a plan to aid our mercantile fleet and included the revised provision for injured seamen now before us for construction. 41 Stat. 988, 1007. It did so by reference to the Federal Employers’ Liability Act, which we have held not applicable to an American citizen’s injury sustained in Canada while in service of an American employer. New York Central R. Co. v. Chisholm, 268 U.S. 29. And it did not give the seaman the one really effective security for a claim against a foreign owner, a maritime lien.

Congress could not have been unaware of the necessity of construction imposed upon courts by such generality of language and as well warned that in the absence of more definite directions than are contained in the Jones Act it would be applied by the courts to foreign events, foreign ships and foreign seamen only in accordance with the usual doctrine and practices of maritime law.

Respondent places great stress upon the assertion that petitioner’s commerce and contacts with the ports of the United States are frequent and regular, as the basis for applying our statutes to incidents aboard his ships. But the virtue and utility of sea-borne commerce lies in its frequent and important contacts with more than one country. If, to serve some immediate interest, the courts of each were to exploit every such contact to the limit of its power, it is not difficult to see that a multiplicity of conflicting and overlapping burdens would blight international carriage by sea. Hence, courts of this and other commercial nations have generally deferred to a nonnational or international maritime law of impressive maturity and universality. It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations.

International or maritime law in such matters as this does not seek uniformity and does not purport to restrict any nation from making and altering its laws to govern its own shipping and territory. However, it aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own. Maritime law, like our municipal law, has attempted to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved. The criteria, in general, appear to be arrived at from weighing of the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority. It would not be candid to claim that our courts have arrived at satisfactory standards or apply those that they profess with perfect consistency. But in dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction.

In the case before us, two foreign nations can claim some connecting factor with this tort—Denmark, because, among other reasons, the ship and the seaman were Danish nationals; Cuba, because the tortious conduct occurred and caused injury in Cuban waters. The United States may also claim contacts because the seaman had been hired in and was returned to the United States, which also is the state of the forum. We therefore review the several factors which, alone or in combination, are generally conceded to influence choice of law to govern a tort claim, particularly a maritime tort claim, and the weight and significance accorded them.

1. Place of the Wrongful Act.—The solution most commonly accepted as to torts in our municipal and in international law is to apply the law of the place where the acts giving rise to the liability occurred, the lex loci delicti commissi. This rule of locality, often applied to maritime torts, would indicate application of the law of Cuba, in whose domain the actionable wrong took place. The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate. These range from ports, harbors, roadsteads, straits, rivers and canals which form part of the domain of various states, through bays and gulfs, and that band of the littoral sea known as territorial waters, over which control in a large, but not unlimited, degree is conceded to the adjacent state. It includes, of course, the high seas as to which the law was probably settled and old when Grotius wrote that it cannot be anyone’s property and cannot be monopolized by virtue of discovery, occupation, papal grant, prescription or custom.…

2. Law of the Flag.—Perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag. Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority over it. Nationality is evidenced to the world by the ship’s papers and its flag. The United States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering state.

This Court has said that the law of the flag supersedes the territorial principle, even for purposes of criminal jurisdiction of personnel of a merchant ship, because it “is deemed to be a part of the territory of that sovereignty [whose flag it flies], and not to lose that character when in navigable waters within the territorial limits of another sovereignty.” On this principle, we concede a territorial government involved only concurrent jurisdiction of offenses aboard our ships.…

3. Allegiance or Domicile of the Injured.—Until recent times there was little occasion for conflict between the law of the flag and the law of the state of which the seafarer was a subject, for the long-standing rule, as pronounced by this Court after exhaustive review of authority, was that the nationality of the vessel for jurisdictional purposes was attributed to all her crew.… We need not, however, weigh the seaman’s nationality against that of the ship, for here the two coincide without resort to fiction. Admittedly, respondent is neither citizen nor resident of the United States. While on direct examination he answered leading questions that he was living in New York when he joined the Randa, the articles which he signed recited, and on cross-examination he admitted, that his home was Silkeburg, Denmark. His presence in New York was transitory and created no such national interest in, or duty toward, him as to justify intervention of the law of one state on the shipboard of another.

4. Allegiance of the Defendant Shipowner.—A state “is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed.” Skiriotes v. Florida, 313 U.S. 69, 73. Steele v. Bulova Watch Co., 344 U.S. 280, 282. Until recent times this factor was not a frequent occasion of conflict, for the nationality of the ship was that of its owners. But it is common knowledge that in recent years a practice has grown, particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries. Confronted with such operations, our courts on occasion have pressed beyond the formalities of more or less nominal foreign registration to enforce against American shipowners the obligations which our law places upon them. But here again the utmost liberality in disregard of formality does not support the application of American law in this case, for its appears beyond doubt that this owner is a Dane by nationality and domicile.

5. Place of Contract.—Place of contract, which was New York, is the factor on which respondent chiefly relies to invoke American law. It is one which often has significance in choice of law in a contract action. But a Jones Act suit is for tort, in which respect it differs from one to enforce liability for maintenance and cure. As we have said of the latter, “In the United States this obligation has been recognized consistently as an implied provision in contracts of marine employment. Created thus with the contract of employment, the liability, unlike that for indemnity or that later created by the Jones Act, in no sense is predicated on the fault or negligence of the shipowner.” But this action does not seek to recover anything due under the contract or damages for its breach.

The place of contracting in this instance, as is usual to such contracts, was fortuitous. A seaman takes his employment, like his fun, where he finds it; a ship takes on crew in any port where it needs them. The practical effect of making the lex loci contractus govern all tort claims during the service would be to subject a ship to a multitude of systems of law, to put some of the crew in a more advantageous position than others, and not unlikely in the long run to diminish hirings in ports of countries that take best care of their seamen.…

We do not think the place of contract is a substantial influence in the choice between competing laws to govern a maritime tort.

6. Inaccessibility of Foreign Forum.—It is argued, and particularly stressed by an amicus brief, that justice requires adjudication under American law to save seamen expense and loss of time in returning to a foreign forum.…

Confining ourselves to the case in hand, we do not find this seaman disadvantaged in obtaining his remedy under Danish law from being in New York instead of Denmark. The Danish compensation system does not necessitate delayed, prolonged, expensive and uncertain litigation. It is stipulated in this case that claims may be made through the Danish Consulate. There is not the slightest showing that to obtain any relief to which he is entitled under Danish law would require his presence in Denmark or necessitate his leaving New York. And, even if it were so, the record indicates that he was offered and declined free transportation to Denmark by petitioner.

7. The Law of the Forum.—It is urged that, since an American forum has perfected its jurisdiction over the parties and defendant does more or less frequent and regular business within the forum state, it should apply its own law to the controversy between them. The “doing business” which is enough to warrant service of process may fall quite short of the considerations necessary to bring extraterritorial torts to judgment under our law. Under respondent’s contention, all that is necessary to bring a foreign transaction between foreigners in foreign ports under American law is to be able to serve American process on the defendant. We have held it a denial of due process of law when a state of the Union attempts to draw into control of its law otherwise foreign controversies, on slight connections, because it is a forum state. The purpose of a conflict-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum. Jurisdiction of maritime cases in all countries is so wide and the nature of its subject matter so far-flung that there would be no justification for altering the law of a controversy just because local jurisdiction of the parties is obtainable.

This review of the connecting factors which either maritime law or our municipal law of conflicts regards as significant in determining the law applicable to a claim of actionable wrong shows an overwhelming preponderance in favor of Danish law. The parties are both Danish subjects, the events took place on a Danish ship, not within our territorial waters. Against these considerations is only the fact that the defendant was served here with process and that the plaintiff signed on in New York, where the defendant was engaged in our foreign commerce. The latter event is offset by provision of his contract that the law of Denmark should govern. We do not question the power of Congress to condition access to our ports by foreign-owned vessels upon submission to any liabilities it may consider good American policy to exact. But we can find no justification for interpreting the Jones Act to intervene between foreigners and their own law because of acts on a foreign ship not in our waters.

In apparent recognition of the weakness of the legal argument, a candid and brash appeal is made by respondent and by amicus briefs to extend the law to this situation as a means of benefiting seamen and enhancing the costs of foreign ship operation for the competitive advantage of our own. We are not sure that the interest of this foreign seaman, who is able to prove negligence, is the interest of all seamen or that his interest is that of the United States. Nor do we stop to inquire which law does whom the greater or the lesser good. The argument is misaddressed. It would be within the proprieties if addressed to Congress. Counsel familiar with the traditional attitude of this Court in maritime matters could not have intended it for us.29

Reversed and remanded.

Justice BLACK agrees with the Court of Appeals and would affirm its judgment.

Justice CLARK, not having heard oral argument, took no part in the consideration or decision of this case.


Questions and Comments

(1) If Arabian American Oil is the international counterpart of the First Restatement, then are the seven factors in Lauritzen analogous to the factors listed in the various sections of the Restatement Second (e.g., Section 188)?

(2) Why does the Court engage in a multilateral analysis in Lauritzen, in contrast to the unilateral analysis in Arabian American Oil? Why didn’t the Court apply the presumption against extraterritoriality? The Supreme Court has applied Lauritzen’s multi-factor approach in other maritime law cases, see Hellenic Line Ltd. v. Rhoditis, 398 U.S. 306 (1970); Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). But it has not invoked a multi-factor analysis in other contexts and indeed has rarely cited Lauritzen in the past four decades. Is there something special about maritime law that requires a multi-factored approach? Why would Lauritzen’s multi-factor approach to the extraterritorial scope of federal law be on the decline during the same period in which multi-factor tests were flourishing, under the guise of the Second Restatement and other doctrines, in state choice-of-law contexts?

(3) Would it be fair to say that “the usual doctrine and practices of maritime law” and international law play the same role in Lauritzen that the principles of territoriality did in Arabian American Oil (i.e., to fill in silences in a statute)? How should the Court construe a statute’s extraterritorial scope if Congress provides no guidance? Which is more faithful to congressional intent: a general canon of extraterritoriality, or a more fine-grained and multi-factored policy analysis?

       3.   Comity

Hoffman-La Roche Ltd. v. Empagran S.A.

542 U.S. 155 (2004)

[Purchasers of vitamins filed a class action suit alleging that various vitamin manufacturers and distributors had engaged in a conspiracy to raise vitamin prices in the United States and foreign countries, in violation of U.S. antitrust law. The issue in this appeal was whether foreign purchasers of the vitamins could maintain an action under the Sherman Act for their foreign harm, in light of the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA). The FTAIA provides that the Sherman Act “shall not apply to conduct involving trade or commerce … with foreign nations (other than import trade or import commerce)” unless the conduct has “a direct, substantial and reasonably foreseeable effect” on domestic commerce, U.S. imports, or U.S. exports, and “such effect gives rise to a claim” under the Sherman Act.]

Justice BREYER delivered the opinion of the Court.…

The price-fixing conduct significantly and adversely affects both customers outside the United States and customers within the United States, but the adverse foreign effect is independent of any adverse domestic effect. In these circumstances, we find that the FTAIA exception does not apply (and thus the Sherman Act does not apply) for two main reasons.

First, this Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.… This rule of construction reflects principles of customary international law—law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of Foreign Relations Law of the United States §§403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another State); Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”); Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) (Scalia, J., dissenting) (identifying rule of construction as derived from the principle of “prescriptive comity”).

This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony—a harmony particularly needed in today’s highly interdependent commercial world.

No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused. See United States v. Aluminum Co. of America, 148 F.2d 416, 443-444 (CA2 1945) (L. Hand, J.)

But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs. But, unlike the former case, the justification for that interference seems insubstantial. Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?

We recognize that principles of comity provide Congress greater leeway when it seeks to control through legislation the actions of American companies; and some of the anticompetitive price-fixing conduct alleged here took place in America. But the higher foreign prices of which the foreign plaintiffs here complain are not the consequence of any domestic anticompetitive conduct that Congress sought to forbid, for Congress did not seek to forbid any such conduct insofar as it is here relevant, i.e., insofar as it is intertwined with foreign conduct that causes independent foreign harm. Rather Congress sought to release domestic (and foreign) anticompetitive conduct from Sherman Act constraints when that conduct causes foreign harm. Congress, of course, did make an exception where that conduct also causes domestic harm.

We thus repeat the basic question: Why is it reasonable to apply this law to conduct that is significantly foreign insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim? We can find no good answer to the question.…

[E]ven where nations agree about primary conduct, say price fixing, they disagree dramatically about appropriate remedies. The application, for example, of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy. And several foreign nations have filed briefs here arguing that to apply our remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody.…

Respondents alternatively argue that comity does not demand an interpretation of the FTAIA that would exclude independent foreign injury cases across the board. Rather, courts can take (and sometimes have taken) account of comity considerations case by case, abstaining where comity considerations so dictate.

In our view, however, this approach is too complex to prove workable. The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings—to the point where procedural costs and delays could themselves threaten interference with a foreign nation’s ability to maintain the integrity of its own antitrust enforcement system. Even in this relatively simple price-fixing case, for example, competing briefs tell us (1) that potential treble-damage liability would help enforce widespread anti-price-fixing norms (through added deterrence) and (2) the opposite, namely that such liability would hinder antitrust enforcement (by reducing incentives to enter amnesty programs). How could a court seriously interested in resolving so empirical a matter—a matter potentially related to impact on foreign interests—do so simply and expeditiously?…

Where foreign anticompetitive conduct plays a significant role and where foreign injury is independent of domestic effects, Congress might have hoped that America’s antitrust laws, so fundamental a component of our own economic system, would commend themselves to other nations as well. But, if America’s antitrust policies could not win their own way in the international marketplace for such ideas, Congress, we must assume, would not have tried to impose them, in an act of legal imperialism, through legislative fiat.

Second, the FTAIA’s language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce. And we have found no significant indication that at the time Congress wrote this statute courts would have thought the Sherman Act applicable in these circumstances.…

Taken together, these two sets of considerations, the one derived from comity and the other reflecting history, convince us that Congress would not have intended the FTAIA’s exception to bring independently caused foreign injury within the Sherman Act’s reach.

Respondents point to several considerations that point the other way. For one thing, the FTAIA’s language speaks in terms of the Sherman Act’s applicability to certain kinds of conduct. The FTAIA says that the Sherman Act applies to foreign “conduct” with a certain kind of harmful domestic effect. Why isn’t that the end of the matter? How can the Sherman Act both apply to the conduct when one person sues but not apply to the same conduct when another person sues?…

Moreover, the exception says that it applies if the conduct’s domestic effect gives rise to “a claim,” not to “the plaintiff’s claim” or “the claim at issue” (emphasis added). The alleged conduct here did have domestic effects, and those effects were harmful enough to give rise to “a” claim. Respondents concede that this claim is not their own claim; it is someone else’s claim. But, linguistically speaking, they say, that is beside the point. Nor did Congress place the relevant words “gives rise to a claim” in the FTAIA to suggest any geographical limitation; rather it did so for a here neutral reason, namely, in order to make clear that the domestic effect must be an adverse (as opposed to a beneficial) effect.

Despite their linguistic logic, these arguments are not convincing. Linguistically speaking, a statute can apply and not apply to the same conduct, depending upon other circumstances; and those other circumstances may include the nature of the lawsuit (or of the related underlying harm). It also makes linguistic sense to read the words “a claim” as if they refer to the “plaintiff’s claim” or “the claim at issue.”

At most, respondents’ linguistic arguments might show that respondents’ reading is the more natural reading of the statutory language. But those arguments do not show that we must accept that reading. And that is the critical point. The considerations previously mentioned—those of comity and history—make clear that the respondents’ reading is not consistent with the FTAIA’s basic intent. If the statute’s language reasonably permits an interpretation consistent with that intent, we should adopt it. And, for the reasons stated, we believe that the statute’s language permits the reading that we give it.

Finally, respondents point to policy considerations that we have previously discussed, namely, that application of the Sherman Act in present circumstances will (through increased deterrence) help protect Americans against foreign-caused anticompetitive injury. As we have explained, however, the plaintiffs and supporting enforcement-agency amici have made important experience-backed arguments (based upon amnesty-seeking incentives) to the contrary. We cannot say whether, on balance, respondents’ side of this empirically based argument or the enforcement agencies’ side is correct. But we can say that the answer to the dispute is neither clear enough, nor of such likely empirical significance, that it could overcome the considerations we have previously discussed and change our conclusion.

For these reasons, we conclude that petitioners’ reading of the statute’s language is correct. That reading furthers the statute’s basic purposes, it properly reflects considerations of comity, and it is consistent with Sherman Act history.


Questions and Comments

(1) If Arabian American Oil represents the traditional territorial approach, and Lauritzen adopts a more modern approach, is the “comity” analysis in Empagran analogous to Currie’s vision of “restrained and moderate interpretation” for true conflicts, or Baxter’s theory of “comparative impairment”?

(2) The extraterritorial application of U.S. antitrust law has a long and varied history. The Sherman Antitrust Act provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” The Supreme Court originally construed this statute to be strictly territorial. See American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909). In 1927, the Court ruled that the Act applied to “deliberate acts, here and elsewhere, [that] brought about forbidden results within the United States.” United States v. Sisal Corp., 274 U.S. 268, 276 (1927). Eighteen years later, the Second Circuit held that U.S. antitrust law applies to agreements made abroad “if they were intended to affect imports and did affect them.” United States v. Aluminum Co. of Am., 148 F.2d 416, 444 (2d Cir. 1945) (en banc). The Supreme Court appeared to endorse this “effects test” in later cases. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582 n.6 (1985); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704 (1962). When the effects test spawned controversy among U.S. trading partners in the 1970s and 1980s because it resulted in extensive regulation of extraterritorial conduct, some lower courts tempered the test with a comity analysis that balanced the interests of foreign nations and sometimes resulted in nonapplication of the Sherman Act even when the effects test was satisfied. See, e.g., Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976). In Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), the Supreme Court applied the effects test to conclude that the Sherman Act governed an alleged conspiracy among foreign insurance companies to affect the U.S. insurance market. In contrast to the lower court approach at that time, the Court appeared to limit the role of “comity” as a basis for not applying the Sherman Act abroad to situations involving what the Court described as a “true conflict,” by which it appeared to mean that compliance with U.S. law would violate foreign law.

(3) Congress enacted the Foreign Trade Antitrust Improvements Act (FTAIA) in 1982 to clarify the application of U.S. antitrust laws to foreign conduct. In pertinent part, the FTAIA states that the antitrust laws will not apply to nonimport commerce with foreign nations unless the conduct at issue has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce and “such effect gives rise to a claim under” the antitrust laws. In Empagran, the Court holds that U.S. antitrust law, as modified by the FTAIA, does not apply to the foreign effects of foreign anticompetitive conduct, where the foreign effects are independent of any domestic effects. What rule of statutory construction does the Court apply in Empagran? What is the relationship between that rule and the presumption against extraterritoriality? What role does comity play in the Court’s analysis? Why does the Court in Empagran reject the case-by-case approach to comity suggested by the respondents?

       4.   International Law of Prescriptive Jurisdiction

United States v. Yunis

924 F.2d 1086 (D.C. Cir. 1991)

[Fawaz Yunis was one of several men who hijacked a Royal Jordanian Airlines flight from Beirut, Lebanon. The plane took off and eventually landed back in Beirut, where the hijackers, including Yunis, released the hostages (including two Americans), blew up the plane, and fled. The FBI subsequently arrested Yunis on a yacht in international waters in the eastern Mediterranean. Yunis was brought to the United States, where he was convicted of conspiracy, 18 U.S.C. §371, hostage taking, 18 U.S.C. §1203, and air piracy, 49 U.S.C. App. §1472(n). Yunis appealed.]

MIKVA, Chief Judge…

Yunis appeals first of all from the district court’s denial of his motion to dismiss for lack of subject matter and personal jurisdiction. Appellant’s principal claim is that, as a matter of domestic law, the federal hostage taking and air piracy statutes do not authorize assertion of federal jurisdiction over him. Yunis also suggests that a contrary construction of these statutes would conflict with established principles of international law, and so should be avoided by this court. Finally, appellant claims that the district court lacked personal jurisdiction because he was seized in violation of American law.


The Hostage Taking Act provides, in relevant part:

(a) Whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or to abstain from any act … shall be punished by imprisonment by any term of years or for life.

(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless—

                           (A) the offender or the person seized or detained is a national of the United States;

                           (B) the offender is found in the United States; or

                           (C) the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. §1203.

Yunis claims that this statute cannot apply to an individual who is brought to the United States by force, since those convicted under it must be “found in the United States.” But this ignores the law’s plain language. Subsections (A), (B), and (C) of section 1203(b)(1) offer independent bases for jurisdiction where “the offense occurred outside the United States.” Since two of the passengers on Flight 402 were U.S. citizens, section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where “the offender or the person seized or detained is a national of the United States,” is satisfied. The statute’s jurisdictional requirement has been met regardless of whether or not Yunis was “found” within the United States under section 1203(b)(1)(B).

Appellant’s argument that we should read the Hostage Taking Act differently to avoid tension with international law falls flat. Yunis points to no treaty obligations of the United States that give us pause. Indeed, Congress intended through the Hostage Taking Act to execute the International Convention Against the Taking of Hostages, which authorizes any signatory state to exercise jurisdiction over persons who take its nationals hostage “if that State considers it appropriate.” International Convention Against the Taking of Hostages, opened for signature Dec. 18, 1979, art. 5, para. 1.

Nor is jurisdiction precluded by norms of customary international law. The district court concluded that two jurisdictional theories of international law, the “universal principle” and the “passive personal principle,” supported assertion of U.S. jurisdiction to prosecute Yunis on hijacking and hostage-taking charges. Under the universal principle, states may prescribe and prosecute “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism,” even absent any special connection between the state and the offense. See Restatement (Third) of the Foreign Relations Law of the United States §§404, 423 (1987). Under the passive personal principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime. See id. at §402 comment g.

Relying primarily on the Restatement, Yunis argues that hostage taking has not been recognized as a universal crime and that the passive personal principle authorizes assertion of jurisdiction over alleged hostage takers only where the victims were seized because they were nationals of the prosecuting state. Whatever merit appellant’s claims may have as a matter of international law, they cannot prevail before this court. Yunis seeks to portray international law as a self-executing code that trumps domestic law whenever the two conflict. That effort misconceives the role of judges as appliers of international law and as participants in the federal system. Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law. See U.S. Const. art. VI. As we said in Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988): “Statutes inconsistent with principles of customary international law may well lead to international law violations. But within the domestic legal realm, that inconsistent statute simply modifies or supersedes customary international law to the extent of the inconsistency.”

To be sure, courts should hesitate to give penal statutes extraterritorial effect absent a clear congressional directive. See Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949); United States v. Bowman, 260 U.S. 94, 98 (1922). Similarly, courts will not blind themselves to potential violations of international law where legislative intent is ambiguous. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.…”). But the statute in question reflects an unmistakable congressional intent, consistent with treaty obligations of the United States, to authorize prosecution of those who take Americans hostage abroad no matter where the offense occurs or where the offender is found. Our inquiry can go no further.


The Antihijacking Act provides for criminal punishment of persons who hijack aircraft operating wholly outside the “special aircraft jurisdiction” of the United States, provided that the hijacker is later “found in the United States.” 49 U.S.C. App. §1472(n). Flight 402, a Jordanian aircraft operating outside of the United States, was not within this nation’s special aircraft jurisdiction. Yunis urges this court to interpret the statutory requirement that persons prosecuted for air piracy must be “found” in the United States as precluding prosecution of alleged hijackers who are brought here to stand trial. But the issue before us is more fact-specific, since Yunis was indicted for air piracy while awaiting trial on hostage-taking and other charges; we must determine whether, once arrested and brought to this country on those other charges, Yunis was subject to prosecution under the Antihijacking Act as well.

The Antihijacking Act of 1974 was enacted to fulfill this nation’s responsibilities under the Convention for the Suppression of Unlawful Seizure of Aircraft (the “Hague Convention”), which requires signatory nations to extradite or punish hijackers “present in” their territory. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 4, para. 2. This suggests that Congress intended the statutory term “found in the United States” to parallel the Hague Convention’s “present in [a contracting state’s] territory,” a phrase which does not indicate the voluntariness limitation urged by Yunis. Moreover, Congress interpreted the Hague Convention as requiring the United States to extradite or prosecute “offenders in its custody,” evidencing no concern as to how alleged hijackers came within U.S. territory. S. Rep. No. 13, 93d Cong., 1st Sess. at 3. From this legislative history we conclude that Yunis was properly indicted under section 1472(n) once in the United States and under arrest on other charges.

The district court correctly found that international law does not restrict this statutory jurisdiction to try Yunis on charges of air piracy. Aircraft hijacking may well be one of the few crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved. But in any event we are satisfied that the Antihijacking Act authorizes assertion of federal jurisdiction to try Yunis regardless of hijacking’s status vel non as a universal crime. Thus, we affirm the district court on this issue.

United States v. Lawrence

727 F.3d 386 (5th Cir. 2013)

[Appellants Felicia Parker and Ade Lawrence, a U.S. citizen and a Nigerian citizen living in the United States, respectively, participated in a plan to transport cocaine from South America to the United Kingdom on board commercial airplanes. They took a number of actions in the United States in support of the plan, including arranging for couriers to travel from Texas to South America to pick up the cocaine. They were convicted of conspiracy to possess illicit substances aboard an aircraft with intent to distribute in violation of 21 U.S.C. §963.]

LEMELLE, District Judge [sitting by designation].…

On appeal, Appellants … argue that: (1) the substantive crime underlying the conspiracy charge—possession with intent to distribute in violation of 21 U.S.C. §959(b)—was not intended to apply to possession of illicit substances aboard a plane traveling between two foreign nations with intent to distribute in a foreign country and that extraterritorial application of §959(b) would violate due process and international law; [and] (2) if Congress enacted §959(b)(2) with the intent that it should apply extraterritorially, it went beyond its Constitutional authority in doing so.…

21 U.S.C. §959, entitled “Possession, manufacture, or distribution of controlled substance,” is located under Subchapter II (Import and Export) of the Drug Abuse Prevention and Control Act (“DAPCA”). §959 states the following:

                           (a) Manufacture or distribution for purpose of unlawful importation

                           It shall be unlawful for any person to manufacture or distribute a controlled substance…

                           (1) intending that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States; or

                           (2) knowing that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States.

(b) Possession, manufacture, or distribution by person on board aircraft

It shall be unlawful for any United States citizen on board any aircraft, or any person on board any aircraft owned by a United States citizen or registered in the United States, to—

(1) manufacture or distribute a controlled substance or listed chemical; or

(2) possess a controlled substance or listed chemical with intent to distribute.

(c) Acts committed outside territorial jurisdiction of the United States; venue

This section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States. Any person who violates this section shall be tried in the United States district court at the point of entry where such person enters the United States, or in the United States District Court for the District of Columbia.

… The phrase “any United States citizen on board any aircraft” used in subsection (b) of 21 U.S.C. §959 suggests that the entire subsection was meant to apply extraterritorially. Appellants contend that the provision should be read to refer only to aircrafts traveling within or to/from the United States. However, given the nature of the international drug trade, possession of an illicit substance aboard an aircraft will often involve travel between foreign nations and consequently, implicates extraterritoriality.…

“‘It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” United States v. Villanueva, 408 F.3d 193, 197 (5th Cir. 2005) (citing Smith v. United States, 507 U.S. 197, 204 (1993)). However, this presumption can be overcome where extraterritorial application can be “inferred from the nature of the offenses and Congress’ other legislative efforts to eliminate the type of crime involved.” Id. at 199 (citing United States v. Baker, 609 F.2d 134, 136 (5th Cir. 1980)). In United States v. Bowman, the Supreme Court articulated when the presumption against extraterritoriality may be overcome in the context of criminal statutes. 260 U.S. 94, 98 (1922). The presumption that Congress intends to limit the jurisdiction of its statutes to the territorial United States “should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents.” Id. (emphasis added). Furthermore, intent to extend jurisdiction beyond the territorial United States can also be inferred where “to limit [the] locus [of the offense] to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute.” Id.

Extraterritorial application of §959(b) is justified under Bowman. “In the context of drug smuggling laws, this Court has found the necessary congressional intent to overcome the presumption against extraterritorial application,” Villanueva, 408 F.3d at 199, and in evaluating DAPCA’s statutory framework, this Court has previously commented that Congress intended that the statute “have a broad sweep in dealing with all aspects of drug abuse.” Baker, 609 F.2d at 137. However, previous cases on extraterritorial application of drug statutes involved Defendants intending to export illicit drugs from the United States or to import and distribute them within the United States. Yet, other Circuits have asserted that the United States government may make efforts to stem the international drug trade “without any showing of an actual effect on the United States” because of the threat that the international drug trade presents to the nation’s ability to function. United States v. Perlaza, 439 F.3d 1149, 1162 (9th Cir. 2006). In enacting the DAPCA, Congress noted the United States’ status as a party to “international conventions designed to establish effective control over international and domestic traffic in controlled substances.” (emphasis added). Explicit reference to this status supports Congressional intent for extraterritorial application of DAPCA. Thus, limiting the application of §959(b) to domestic possession of illicit drugs on an aircraft would greatly curtail the intended scope and usefulness of DAPCA.

Having established Congressional intent to give §959(b) extraterritorial application, we must now consider whether international law permits the exercise of such jurisdiction. Rivard v. United States, 375 F.2d 882, 885 (5th Cir. 1967). “Under international law a state does not have jurisdiction to enforce a rule of law prescribed by it, unless it had jurisdiction to prescribe the rule.” Rivard, 375 F.2d at 885 (citing Restatement, Second of Foreign Relations Law §7(2) (1965)). “The law of nations permits the exercise of criminal jurisdiction by a nation under five general principles. They are the territorial, national, protective, universality, and passive personality principles.” Id. Under the nationality principle, “a country may supervise and regulate the acts of its citizens both within and without its territory.” United States v. Columba-Colella, 604 F.2d 356, 358 (5th Cir. 1979). It is generally accepted that “the legislative authority of the United States over its citizens extends to conduct by Americans … even within the territory of other sovereigns.” United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir. 1977) (citing Steele v. Bulova Watch Co., 344 U.S. 280 (1952)). Under this theory, the exercise of jurisdiction over Appellant Parker’s extraterritorial conduct is proper as she is a United States citizen.

“Under the protective theory … a country’s legislature is competent to enact…[and] enforce criminal laws wherever and by whomever the act is performed that threatens the country’s security or directly interferes with its governmental operations.” Columba-Colella, 604 F.2d at 358 (emphasis added). As noted earlier, Congress has demonstrated, in enacting DAPCA and in ratifying various international conventions on the eradication of drug trafficking, that it considers the international drug trade to be a major threat to the safety of the United States … Appellant Lawrence recruited drug couriers within the United States and organized a plan to traffic drugs internationally. Given Congressional efforts to halt the international drug trade, we find that criminalization of Appellant Lawrence’s conduct is justified under the protective principle. The court notes that we do not, today, address the question of application of §959(b) to a crime where absolutely no actions related to the crime were committed in the United States or to a situation where the conduct at issue was lawful in the jurisdictions in which it occurred but unlawful in the United States.…

In Blackmer v. United States, the Supreme Court stated that U.S. citizens “owe allegiance to the United States [and that] [b]y virtue of the obligations of citizenship, the United States retain[s] its authority over [its citizens], and [its citizens are] bound by its laws made applicable to [them] in a foreign country.” 284 U.S. 421, 437 (1932). In that case, the Court found that a U.S. citizen was still subject to punishment in the courts of the United States for violations of United States’ laws through conduct perpetrated abroad. Id. Under Blackmer, application of §959(b) to Appellant Parker, a U.S. citizen, does not violate the Due Process Clause.

In the context of non-U.S. citizens, “due process requires the Government to demonstrate that there exists ‘a sufficient nexus between the conduct condemned and the United States’ such that application of the statute would not be arbitrary or fundamentally unfair to the defendant.” Perlaza, 439 F.3d at 1160. Appellant Lawrence himself and his part in the conspiracy do have such a nexus to the United States: Lawrence resided in Houston, Texas, with his wife (who served as one of his couriers), recruited drug couriers, formulated the plan to traffic drugs, bought plane tickets, applied for his drug couriers’ passports, and transferred some of the requisite cash to his couriers all in the United States. These contacts create a nexus sufficient to satisfy due process requirements.

The United States Constitution expressly empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress’s Article 1, §8] Powers and all other Powers vested by this Constitution in the Government of the United States.”… The Supreme Court has “rejected the view that the Necessary and Proper Clause demands that an Act of Congress be ‘absolutely necessary’ to the exercise of an enumerated power.…[I]t suffices that [a statute] is ‘conducive to the administration of justice’ in federal court, and is ‘plainly adapted’ to that end.” Id. at 462 (citing McCulloch v. Maryland, 17 U.S. 316, 414, 417, 421 (1819)). “[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United States v. Comstock, 560 U.S. 126 (2010). Congress possesses authority to criminalize conduct in the course of “carrying into Execution” the powers “vested by” the United States Constitution.

“[The President] shall have power, by and with the Advice and Consent of the Senate, to make Treaties.” U.S. Const. art. II, §2, cl. 2. All treaties ratified by Congress become the supreme law of the land. U.S. Const. art. VI, cl. 2. At the time that DAPCA was enacted, the United States was party to the Single Convention on Narcotic Drugs (1961), to which Congress made explicit reference when it passed DAPCA, highlighting the Convention’s relevance to the enactment of the legislation.

Article 36 of the Single Convention states that each Party to the Convention shall adopt such measures as will ensure that, inter alia, possession of drugs “contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offenses when committed intentionally.” United Nations Single Convention on Narcotic Drugs, 1961, art. 36(1), Mar. 30, 1961. Appellants note that Art. 36(2)(a)(iv) of the Single Convention states that offenses “committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed” and argue that allowing §959(b)(2) to have extraterritorial effect would violate the treaty. Appellants’ reliance on this provision is unavailing. First, as previously noted, under the protective principle, it is accepted that a state may enforce its laws against its own citizens abroad without offending the sovereignty of foreign nations. Columba-Colella, 604 F.2d at 358. Thus, the prosecution of Appellant Parker, a U.S. citizen, comports with international law. Furthermore, the Single Convention states that “[i]ntentional participation in, conspiracy to commit and attempts to commit, any of such offences, and preparatory acts and financial operations” in connection with prohibited offenses will be punishable. Id. at art. 36(2)(a)(ii) (emphasis added). Both appellants were charged with conspiracy to possess with intent to distribute. As previously noted, Appellant Lawrence formed the conspiracy in the United States and took a multitude of actions in furtherance of the conspiracy in the United States. Thus, application of §§959(b)(2) and 963 to Appellant Lawrence is also consistent with U.S. treaty obligations.

Given the directives of the Single Convention, extraterritorial application of §959(b)(2) is rationally related to the implementation of Congress’s treaty-making power, “conducive to the administration of justice” in federal court, and “plainly adapted” to that end. Thus, we find that extraterritorial application of §959(b)(2) in this case is permissible as implementing Congress’ treaty-making power under the Necessary and Proper Clause.


Questions and Comments

(1) Yunis and Lawrence make clear that, even if the presumption against extraterritoriality is inapplicable or is overcome, international law can still be relevant in determining a statute’s proper extraterritorial scope. It is generally agreed that customary international law imposes limits on a nation’s prescriptive jurisdiction. Under this view, a nation’s exercise of prescriptive jurisdiction must fall within one of five categories: territoriality; nationality; the protective principle; passive personality; or universality. Under the territoriality category, nations may regulate conduct that takes place within their territory or has substantial effects within their territory. Under the nationality category, nations may regulate the conduct of their citizens both inside and outside their territory. Under the protective principle, nations may regulate certain conduct outside their territory that threatens their national security or government operations. Under the passive personality category, nations may regulate certain conduct that harms their nationals abroad. Finally, under the universality category, nations may regulate certain egregious conduct committed anywhere in the world. See Restatement (Third) of the Foreign Relations Law of the United States §§402, 404 (1987). Another “category” in which the exercise of prescriptive jurisdiction is permissible is when one nation specifically agrees with another (for example, in a treaty) to allow the other nation to regulate within the first nation’s territory.

Why did the courts in Yunis and Lawrence invoke international law in construing the criminal statutes before them? In Yunis, the court looked to international law in the course of applying the “Charming Betsy” canon, pursuant to which “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). In Lawrence, in asking “whether international law permits the exercise of such jurisdiction,” was the court applying the Charming Betsy canon or invoking international law in a different way?

(2) Prescriptive jurisdiction over conduct or persons within a country’s territorial boundaries has long been uncontroversial. This concept of territorial jurisdiction also includes conduct that occurs outside a country but has effects within that country. An early endorsement of this proposition came in the decision of the Permanent Court of International Justice in The Case of the S.S. Lotus, 1927 PCIJ, Ser. A, No. 10. In that case, a French steamship and a Turkish steamship collided on the high seas, causing eight Turkish nationals to die. The court held that Turkey could apply its criminal laws to a French officer on the French ship, on the theory that his negligence had caused the collision.

For conduct that occurs outside a nation’s territory, what effects are sufficient to allow the nation to regulate the conduct? How, if at all, is the defendant’s intent relevant to this analysis? Should this territorial category of jurisdiction also apply to situations in which a defendant engages in lawful conduct within the territory that has harmful effects outside the territory? How does the effects test relate to the presumption against extraterritoriality?

(3) As noted above, under customary international law, nations have broad authority to regulate the conduct of their own nationals around the world. See, e.g., Blackmer v. United States, 284 U.S. 421 (1932) (upholding application of federal subpoena statute to U.S. citizen living in France). What is the rationale for this nationality category of jurisdiction? What limits, if any, should there be for this category of prescriptive jurisdiction? Consider 18 U.S.C. §2423(c), which provides that “[a]ny United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.” The phrase “illicit sexual contact” is defined to include commercial and other sexual acts with persons under 18 years of age. This statute was enacted as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the PROTECT Act). See Pub. L. No. 108-21, 117 Stat. 650 (2003). Is it consistent with international law? See United States v. Clark, 315 F. Supp. 2d 1127 (W.D. Wash. 2004) (concluding that the statute is supported by both the nationality principle and the universality principle), aff’d, 435 F.3d 1100 (9th Cir. 2006).

(4) The protective principle allows for the prosecution of “offenses directed against the security of the state or other offenses threatening the integrity of governmental functions that are generally recognized as crimes by developed legal systems.” Restatement (Third) of the Foreign Relations Law of the United States §402 cmt. f (1987). Lawrence relied on this category of prescriptive jurisdiction to uphold the prosecution of drug trafficking outside the United States. Does such drug trafficking constitute a threat to state security or the integrity of governmental functions? For a critique of reliance on the protective principle in this context, see Kontorovich, Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191, 1229-31 (2009). Cf. United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012) (concluding that drug trafficking is not an offense against the law of nations and that Congress therefore cannot use its Define and Punish Clause authority to regulate it in another nation’s territorial waters).

(5) Somewhat less settled is the passive personality category, which would allow nations to assert jurisdiction, especially criminal jurisdiction, over aliens who injure their nationals abroad. Historically, the United States disputed the validity of this category of jurisdiction. For example, in the Cutting Case in 1887, the secretary of state protested when Mexico arrested a U.S. citizen for libeling a Mexican citizen in the United States. See 2 John Bassett Moore, International Law Digest 232-240 (1906). As Yunis exemplifies, however, in recent years, the United States and other countries have increasingly relied upon this category of jurisdiction as a basis for regulating terrorist attacks on their citizens.

What conduct should be covered by the category of prescriptive jurisdiction? Consider United States v. Neil, 312 F.3d 419 (9th Cir. 2002). In that case, the court affirmed the conviction of a foreign citizen who, while working as an employee aboard a foreign cruise ship, engaged in sexual contact with a 12-year-old passenger, who was an American citizen, while the ship was in Mexican territorial waters. The cruise ship departed from and returned to one of California’s harbors. Upon her return, the young female victim missed several days of school and underwent psychological counseling. The defendant had argued that the United States did not have extraterritorial jurisdiction over the crime. The applicable U.S. statute (18 U.S.C. §2344(a)) makes it a criminal offense to “knowingly engage in a sexual act with another person who has attained the age of 12 years but has not attained the age of 16 years.” This statute applies in the “special maritime and territorial jurisdiction of the United States,” which is defined elsewhere as including, “[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.” 18 U.S.C. §7(8). The court of appeals found that international law supported extraterritorial jurisdiction in this case under the territorial principle and the passive personality principle. Do you agree?

(6) Most U.S. criminal statutes expressly or implicitly require a connection to the United States or a U.S. national and thus do not assert universal jurisdiction. Until recently, this was true even of the federal genocide statute, which required that the offense occur in the United States or that the offender be a U.S. national. In 2007, however, the statute was amended to allow for prosecution of non-U.S. citizens who commit genocide outside the United States and are “brought into, or found in” the United States. See 18 U.S.C. §1091(d)(5). The federal torture statute, enacted in 1994, also allows for universal jurisdiction over official acts of torture committed outside the United States. See 18 U.S.C. §2340A. In December 2006, the U.S. government employed this statute for the first time, in the prosecution of Charles McArthur Emmanuel, the son of former Liberian president Charles Taylor. The government alleged that Emmanuel, who was born in the United States, participated in the torture of a man in Liberia in 2002. Emmanuel, also known as “Chuckie Taylor,” was subsequently convicted under the torture statute and sentenced to 97 years in prison. See United States v. Belfast, 611 F.3d 783 (11th Cir. 2010) (upholding conviction and rejecting argument that the criminal torture statute exceeded Congress’s authority).

(7) The Restatement (Third) of Foreign Relations Law contends that, in addition to falling within one of the above categories, the exercise of prescriptive jurisdiction must also be reasonable (except, apparently, for exercises of universal jurisdiction). See Restatement (Third), §403(1). The Restatement (Third) also sets forth a variety of factors to be considered in assessing reasonableness. These factors include the connection between the regulating state’s territory and the regulated activity, the connection between the regulating state and the person being regulated, the importance of the regulation to the regulating state, the importance of the regulation to the international political, legal, or economic system, the extent to which the regulation is consistent with the traditions of the international legal system, the extent to which another state may have an interest in regulating, and the likelihood of conflict with the regulations of another nation. See id. §403(2). Commentators have debated whether this reasonableness requirement is in fact reflected in customary international law. Compare Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Am. J. Intl. L. 53 (1995) (arguing that international law does not contain reasonableness limitation), with Lowenfeld, International Litigation and the Quest for Reasonableness (1996) (defending reasonableness limitation on jurisdiction to prescribe).

(8) As noted in Chapter 4, the due process clause of the Fourteenth Amendment limits the extent to which U.S. states may apply their laws to conduct occurring outside the state. It is not clear whether or to what extent there are also Fifth Amendment due process limits on the permissible application of federal law to conduct occurring outside the United States. Lawrence assumes that the due process clause is relevant to the extraterritorial application of U.S. federal law, but finds sufficient contacts with the United States to satisfy due process. For discussion of this issue, see Brilmayer & Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992), and Weisburd, Due Process Limits on Federal Extraterritorial Legislation, 35 Colum. J. Transnat’l L. 379 (1997).

This due process issue has arisen in cases brought under the Maritime Drug Law Enforcement Act (MDLEA), which provides that “[i]t is unlawful for any person … on board a vessel subject to the jurisdiction of the United States … to possess with intent to manufacture or distribute, a controlled substance.” The MDLEA also provides that “a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding” under the statute. Courts have generally assumed that applications of this statute are subject to due process limitations but that these limitations simply require that the law not be applied in an “arbitrary or fundamentally unfair” manner. See, e.g., United States v. Suerte, 291 F.3d 366 (5th Cir. 2002); United States v. Cardales, 168 F.3d 548 (1st Cir. 1999). The U.S. Court of Appeals for the Ninth Circuit also requires a nexus between the defendant’s activities and the United States. See, e.g., United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998); United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990). Other circuits have rejected this requirement. See Suerte, 291 F.3d at 369-72 (summarizing decisions). Even the Ninth Circuit does not impose this requirement for stateless vessels, see United States v. Caicedo, 47 F.3d 370, 379 (9th Cir. 1995), and for situations in which international law allows for universal jurisdiction, see United States v. Shi, 525 F.3d 709, 723 (9th Cir. 2008).

B.   Extraterritoriality and the Constitution

Reid v. Covert

354 U.S. 1 (1957)

[Clarice Covert, a civilian, killed her husband, a sergeant in the United States Air Force, at an airbase in England. Dorothy Smith, also a civilian, killed her husband, an Army officer, at a post in Japan. Both women were tried by a court-martial for murder—in England and Japan, respectively—under the Uniform Code of Military Justice (UCMJ), Article 2(11) of which provided:

The following persons are subject to this code:…

Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States.…

Both women claimed that they were insane at the time of the murder; both were found guilty and sentenced to life in prison; and both filed petitions for a writ of habeas corpus, arguing that the Constitution prohibited their trial by military authorities. One court granted the writ; another denied it. The Supreme Court consolidated the cases and initially held that the military trials were constitutional. The Court subsequently granted rehearing and issued the following decision.]

Mr. Justice BLACK announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join.…

At the beginning we 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. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.…

The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroachments of Government by express provisions of our written Constitution.

Among those provisions, Art. III, §2 and the Fifth and Sixth Amendments are directly relevant to these cases.…

The language of Art. III, §2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that when a crime is “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” If this language is permitted to have its obvious meaning, §2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held.… The Fifth and Sixth Amendments, like Art. III, §2, are also all inclusive with their sweeping references to “no person” and to “all criminal prosecutions.”

… While it has been suggested that only those constitutional rights which are “fundamental” protect Americans abroad, we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of “Thou shalt nots” which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.…

The keystone of supporting authorities mustered by the Court’s opinion last June to justify its holding that Art. III, §2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U.S. 453. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship’s officer, was seized and tried before a consular “court” in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other “non-Christian” countries. These statutes provided that the laws of the United States were to govern the trial except:

where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.

The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the “non-Christian” countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and after conviction take away their liberty or their life—sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person or even in one branch of the Government is ordinarily regarded as the very acme of absolutism. Nevertheless, the Court sustained Ross’ conviction by the consul. It stated that constitutional protections applied “only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad.” Despite the fact that it upheld Ross’ conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that “[t]he Constitution can have no operation in another country.”

The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases. That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad. Thus the Ross case rested, at least in substantial part, on a fundamental misconception and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans. We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era.

The Court’s opinion last Term also relied on the “Insular Cases” to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable to the trial of Mrs. Smith and Mrs. Covert. We believe that reliance was misplaced. The “Insular Cases,” which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, §3, had entirely different cultures and customs from those of this country. This Court, although closely divided, ruled that certain constitutional safeguards were not applicable to these territories since they had not been “expressly or impliedly incorporated” into the Union by Congress. While conceding that “fundamental” constitutional rights applied everywhere, the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.

The “Insular Cases” can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.…

Mr. Justice HARLAN, concurring in the result.

I concur in the result, on the narrow ground that where the offense is capital, Article 2(11) cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace.…

… Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers. Hence the constitutionality of the statute here in question must be tested, not by abstract notions of what is reasonable “in the large,” so to speak, but by whether the statute, as applied in these instances, is a reasonably necessary and proper means of implementing a power granted to Congress by the Constitution. To say that the validity of the statute may be rested upon the inherent “sovereign powers” of this country in its dealings with foreign nations seems to me to be no more than begging the question. As I now see it, the validity of this court-martial jurisdiction must depend upon whether the statute, as applied to these women, can be justified as an exercise of the power, granted to Congress by Art. I, §8, cl. 14 of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces.” I can find no other constitutional power to which this statute can properly be related.

… We return, therefore, to the Ross question: to what extent do these provisions of the Constitution apply outside the United States?

As I have already stated, I do not think that it can be said that these safeguards of the Constitution are never operative without the United States, regardless of the particular circumstances. On the other hand, I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution “does not apply” overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place.… In other words, what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas.

I think the above thought is crucial in approaching the cases before us. Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not “apply” overseas. But, for me, the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it. The question is one of judgment, not of compulsion.…[W]e have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is “due” a defendant in the particular circumstances of a particular case.

On this basis, I cannot agree with the sweeping proposition that a full Article III trial, with indictment and trial by jury, is required in every case for the trial of a civilian dependent of a serviceman overseas. The Government, it seems to me, has made an impressive showing that at least for the run-of-the-mill offenses committed by dependents overseas, such a requirement would be … impractical and … anomalous.…

So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority.… The number of such cases would appear to be so negligible that the practical problems of affording the defendant a civilian trial would not present insuperable problems.

United States v. Verdugo-Urquidez

494 U.S. 259 (1989)

Chief Justice REHNQUIST delivered the opinion of the Court.

The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.

Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985.

Following respondent’s arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office, decided to arrange for searches of Verdugo-Urquidez’s Mexican residences located in Mexicali and San Felipe. Bowen believed that the searches would reveal evidence related to respondent’s alleged narcotics trafficking activities and his involvement in the kidnapping and torture-murder of DEA Special Agent Enrique Camarena Salazar (for which respondent subsequently has been convicted in a separate prosecution). Bowen telephoned Walter White, the Assistant Special Agent in charge of the DEA office in Mexico City, and asked him to seek authorization for the search from the Director General of the Mexican Federal Judicial Police (MFJP). After several attempts to reach high ranking Mexican officials, White eventually contacted the Director General, who authorized the searches and promised the cooperation of Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP searched respondent’s properties in Mexicali and San Felipe and seized certain documents. In particular, the search of the Mexicali residence uncovered a tally sheet, which the Government believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States.

The District Court granted respondent’s motion to suppress evidence seized during the searches, concluding that the Fourth Amendment applied to the searches and that the DEA agents had failed to justify searching respondent’s premises without a warrant. A divided panel of the Court of Appeals for the Ninth Circuit affirmed. It cited this Court’s decision in Reid v. Covert, 354 U.S. 1 (1957), which held that American citizens tried by United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that “[t]he Constitution imposes substantive constraints on the federal government, even when it operates abroad.” Relying on our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that illegal aliens in the United States have Fourth Amendment rights, the Ninth Circuit majority found it “difficult to conclude that Verdugo-Urquidez lacks these same protections.” It also observed that persons in respondent’s position enjoy certain trial-related rights, and reasoned that “[i]t would be odd indeed to acknowledge that Verdugo-Urquidez is entitled to due process under the fifth amendment, and to a fair trial under the sixth amendment,… and deny him the protection from unreasonable searches and seizures afforded under the fourth amendment.” Having concluded that the Fourth Amendment applied to the searches of respondent’s properties, the court went on to decide that the searches violated the Constitution because the DEA agents failed to procure a search warrant. Although recognizing that “an American search warrant would be of no legal validity in Mexico,” the majority deemed it sufficient that a warrant would have “substantial constitutional value in this country,” because it would reflect a magistrate’s determination that there existed probable cause to search and would define the scope of the search.

Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U.S. 441, 453 (1972). The Fourth Amendment functions differently. It prohibits “unreasonable searches and seizures” whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is “fully accomplished” at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent’s Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging…the right of the people peaceably to assemble”) (emphasis added); Art. I, §2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States “) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of a persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. The language of these Amendments contrasts with the words “person” and “accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.… The available historical data show,… that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.

There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the “undeclared war” with France. In an Act to “protect the Commerce of the United States” in 1798, Congress authorized President Adams to “instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas.” §1 of An Act Further to Protect the Commerce of the United States, ch. 68, 1 Stat. 578. This public naval force consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private armed ships and vessels of the United States “special commissions,” which would allow them “the same license and authority for the subduing, seizing and capturing any armed French vessel, and for the recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels of the United States may by law have.” §2, 1 Stat. 579; see U.S. Const., Art. I, §8, cl. 11 (Congress has power to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these enactments resulted in scores of seizures of foreign vessels under congressional authority. Some commanders were held liable by this Court for unlawful seizures because their actions were beyond the scope of the congressional grant of authority, see, e.g., Little v. Barreme, 2 Cranch 170, 177-178 (1804); but it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this.

The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court’s decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U.S. 244 (1901) (Revenue Clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory—one not clearly destined for statehood—Congress was not required to adopt “a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated.” 195 U.S., at 149 (emphasis added). Only “fundamental” constitutional rights are guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313. If that is true with respect to territories ultimately governed by Congress, respondent’s claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power.

Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; “[t]he alien … has been accorded a generous and ascending scale of rights as he increases his identity with our society.” Id., at 770. But our rejection of extraterritorial application of the Fifth Amendment was emphatic:

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244 [(1901)]. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.

Id., at 784. If such is true of the Fifth Amendment, which speaks in the relatively universal term of “person,” it would seem even more true with respect to the Fourth Amendment, which applies only to “the people.”

To support his all-encompassing view of the Fourth Amendment, respondent points to language from the plurality opinion in Reid v. Covert, 354 U.S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military Justice to the trials of the American women for capital crimes. Four Justices “reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights.” Id., at 5 (emphasis added). The plurality went on to say:

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. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.

Id., at 5-6 (emphasis added; footnote omitted). Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurrences by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions. Since respondent is not a United States citizen, he can derive no comfort from the Reid holding.

Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not.

Justice Stevens’ concurrence in the judgment takes the view that even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was “lawfully present in the United States … even though he was brought and held here against his will.” Post, at 279. But this sort of presence—lawful but involuntary—is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment if the duration of his stay in the United States were to be prolonged—by a prison sentence, for example—we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made.

The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment’s exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, and such assumptions—even on jurisdictional issues—are not binding in future cases that directly raise the questions. Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is different from respondent’s. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among “the people” of the United States.

Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, 393 U.S. 763 (1950), the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in “searches or seizures.” The United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security. Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters.… The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands. But the Court of Appeals’ global view of its applicability would plunge them into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United States agents could not effect a “search or seizure” for law enforcement purposes in a foreign country without first obtaining a warrant—which would be a dead letter outside the United States—from a magistrate in this country. Even if no warrant were required, American agents would have to articulate specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the Court of Appeals.

We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent’s claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.

For better or for worse, we live in a world of nation-states in which our Government must be able to “functio[n] effectively in the company of sovereign nations.” Perez v. Brownell, 356 U.S. 44, 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise halfway around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.

The judgment of the Court of Appeals is accordingly reversed.

Justice KENNEDY, concurring.

I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join.

In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e.g., Reid v. Covert, 354 U.S. 1 (1957), or an alien, see, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it.… The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms.

For somewhat similar reasons, I cannot place any weight on the reference to “the people” in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of “the people.”

I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. See 354 U.S., at 6. But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations. We have not overruled either In re Ross, 140 U.S. 453 (1891), or the so-called Insular Cases (i.e., Downes v. Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922)). These authorities, as well as United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), stand for the proposition that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad.

The conditions and considerations of this case would make adherence to the Fourth Amendment’s warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their “wholly dissimilar traditions and institutions,” the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case.

I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it, “the question of which specific safeguards … are appropriately to be applied in a particular context … can be reduced to the issue of what process is ‘due’ a defendant in the particular circumstances of a particular case.” Reid, supra, at 75. Nothing approaching a violation of due process has occurred in this case.

Justice STEVENS, concurring in the judgment.

In my opinion aliens who are lawfully present in the United States are among those “people” who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court’s sweeping opinion.* I do agree, however, with the Government’s submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not “unreasonable” as that term is used in the first Clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court’s judgment.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects in this country. Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal statutes.

The Constitution is the source of Congress’ authority to criminalize conduct, whether here or abroad, and of the Executive’s authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government’s authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic.… The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government’s power to enforce the criminal law.


… According to the majority, the term “the people” refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The Court admits that “the people” extends beyond the citizenry, but leaves the precise contours of its “sufficient connection” test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop “substantial connections” with our country. At other junctures, the Court suggests that an alien’s presence in the United States must be voluntary and that the alien must have “accepted some societal obligations.” At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States.7

What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The “sufficient connection” is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose “societal obligations,” such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.

By concluding that respondent is not one of “the people” protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them.…

Mutuality is essential to ensure the fundamental fairness that underlines our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive Government behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these codefendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well.

Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere.… This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness.

Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation’s values. For over 200 years, our country has considered itself the world’s foremost protector of liberties. The privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a Government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others—and to ourselves—that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner?


In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of “the people” protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these however, justifies the majority’s cramped interpretation of the Fourth Amendment’s applicability.

The majority looks to various constitutional provisions and suggests that “‘the people’ seems to have been a term of art.” But the majority admits that its “textual exegesis is by no means conclusive.” Ibid.9 One Member of the majority even states that he “cannot place any weight on the reference to ‘the people’ in the Fourth Amendment as a source of restricting its protections.” (Kennedy, J., concurring). The majority suggests a restrictive interpretation of those with “sufficient connection” to this country to be considered among “the people,” but the term “the people” is better understood as a rhetorical counterpoint to “the Government,” such that rights that were reserved to “the people” were to protect all those subject to “the Government.”…“The people” are “the governed.”

The drafting history of the Fourth Amendment also does not support the majority’s interpretation of “the people.” First, the Drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to “citizens,” “freemen,” “residents,” or “the American people.” The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, “That every freeman has a right to be secure from all unreasonable searches and seizures.…” W. Cuddihy, Search and Seizure in Great Britain and the American Colonies, pt. 2, p.571, n.129, 574, n.134 (1974). But the Drafters of the Fourth Amendment rejected this limitation and instead provided broadly for “[t]he right of the people to be secure in their persons, houses, papers, and effects.” Second, historical materials contain no evidence that the Drafters intended to limit the availability of the right expressed in the Fourth Amendment. The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term “the people” as a limitation.

The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that “not every constitutional provision applies to governmental activity even where the United States has sovereign power.” None of these cases, however, purports to read the phrase “the people” as limiting the protections of the Fourth Amendment to those with “sufficient connection” to the United States, and thus none gives content to the majority’s analysis. The cases shed no light on the question whether respondent—a citizen of a nonenemy nation being tried in a United States federal court—is one of “the people” protected by the Fourth Amendment.

The majority mischaracterizes Johnson v. Eisentrager, 339 U.S. 763 (1950), as having “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that “the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” 339 U.S., at 785 (emphasis added). As the Court wrote:

It is war that exposes the relative vulnerability of the alien’s status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.… But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage.

Id., at 771-772. The Court rejected the German nationals’ efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers.

The Insular Cases, Balzac v. Porto Rico, 258 U.S. 298 (1922), Ocampo v. United States, 234 U.S. 91 (1914), Dorr v. United States, 195 U.S. 138 (1904), and Hawaii v. Mankichi, 190 U.S. 197 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U.S., at 14 (plurality opinion) (“[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion”), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court.11


The majority’s rejection of respondent’s claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas “could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.” Ante, at 273-274. The majority’s doomsday scenario—that American Armed Forces conducting a mission to protect our national security with no law enforcement objective “would have to articulate specific facts giving them probable cause to undertake a search or seizure,” ante, at 274—is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment because our Government, by investigating and prosecuting him, has made him one of “the governed.” See supra, at 284, 287. Accepting respondent as one of “the governed,” however, hardly requires the Court to accept enemy aliens in wartime as among “the governed” entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra.

Moreover, with respect to non-law-enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment’s strictures and the Executive’s foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Therefore, the Government’s conduct would be assessed only under the reasonableness standard, the application of which depends on context.

In addition, where the precise contours of a “reasonable” search and seizure are unclear, the Executive Branch will not be “plunge[d]… into a sea of uncertainty,” that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive’s traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution.

Justice BLACKMUN, dissenting.

I cannot accept the Court of Appeals’ conclusion, echoed in some portions of Justice Brennan’s dissent, that the Fourth Amendment governs every action by an American official that can be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents and foreign nationals is therefore fundamentally different from the relationship between United States officials and individuals residing within this country.

I am inclined to agree with Justice Brennan, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of “the governed” and therefore is entitled to Fourth Amendment protections. Although the Government’s exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey. In any event, as Justice Stevens notes, respondent was lawfully (though involuntarily) within this country at the time the search occurred. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I agree with the Government, however, that an American magistrate’s lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen’s residence outside this country.

The Fourth Amendment nevertheless requires that the search be “reasonable.” And when the purpose of a search is the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court nor the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.

Boumediene v. Bush

553 U.S. 723 (2008)

[This decision involves habeas corpus challenges by detainees held at the Guantanamo Bay Naval Base in Cuba. Petitioning for a writ of habeas corpus is the traditional means by which an individual held in government custody can obtain judicial review of the validity of the detention. The Suspension Clause of the Constitution, in Article I, Section 9, provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Supreme Court has interpreted this Clause as conferring a constitutional right of habeas corpus review that applies except when validly suspended by Congress. In the Military Commissions Act of 2006, Congress purported to eliminate habeas corpus jurisdiction over individuals who have been determined by the United States to be enemy combatants, including the detainees at Guantanamo, but it did not purport to suspend the constitutional right of habeas corpus. One of the central issues in this case, therefore, was whether this constitutional right applied to non-U.S. citizens held at Guantanamo. If it did, and if Congress had not provided an adequate substitute for habeas corpus review, its denial of habeas corpus jurisdiction would be unconstitutional.]

Justice KENNEDY delivered the opinion of the Court.…

Guantanamo Bay is not formally part of the United States. And under the terms of the lease between the United States and Cuba [concluded in 1903], Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” Under the terms of [a 1934 treaty between the United States and Cuba], however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base.

The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. Even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect.

We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis.…

Fundamental questions regarding the Constitution’s geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines—ceded to the United States by Spain at the conclusion of the Spanish-American War—and Hawaii—annexed by the United States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional rights to the territories by statute.

In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position.…

[T]he Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants “guaranties of certain fundamental personal rights declared in the Constitution.” Yet noting the inherent practical difficulties of enforcing all constitutional provisions “always and everywhere,” the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter.

Practical considerations likewise influenced the Court’s analysis a half-century later in [Reid v. Covert, 354 U.S. 1 (1957)].…

Practical considerations weighed heavily as well in Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers’ postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It “would require allocation of shipping space, guarding personnel, billeting and rations” and would damage the prestige of military commanders at a sensitive time. In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities.…

The Government’s formal sovereignty-based test [for extraterritorial scope of the constitutional writ of habeas corpus] raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, Art. I. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory “in trust” for the benefit of the Cuban people. And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U.S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

[T]he outlines of a framework for determining the reach of the Suspension Clause are suggested by the factors the Court relied upon in Eisentrager. In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner:

(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses.

In comparison the procedural protections afforded to the detainees in the [status review hearings held by the U.S. military at Guantanamo] are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.…

As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. The United States was therefore answerable to its Allies for all activities occurring there. The Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation.… In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.

As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us.

The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘werewolves.’”

Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base.

There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or anomalous” would have more weight. Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them.…

[The Court proceeds to hold that Congress has not provided an adequate substitute for habeas corpus review and thus its denial of habeas corpus jurisdiction over the detainees at Guantanamo is unconstitutional.]

Justice SCALIA, with whom THE CHIEF JUSTICE, Justice THOMAS, and Justice ALITO join, dissenting.…

The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.…

The Court purports to derive from our precedents a “functional” test for the extraterritorial reach of the writ, which shows that the Military Commissions Act unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager, 339 U.S. 763 (1950), conclusively establishes the opposite.…

There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U.S. sovereign territory, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled. The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court’s “functional” test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military. And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia, much less an apology.

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The “functional” test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.


Questions and Comments

(1) The preamble to the Constitution provides: “We the People of the United States, in Order to … secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Supremacy Clause states that “[t]his Constitution … shall be the supreme Law of the Land.” And Article III authorizes federal court jurisdiction over, among other things, suits involving foreign citizens, subjects, and ambassadors. What, if anything, do these provisions suggest about the geographical scope of the U.S. Constitution?

(2) Constitutional rights apply with full force to U.S. citizens within the United States. Aliens within the United States are also considered persons entitled to constitutional protection. See, e.g., Zadvydus v. Davis, 533 U.S. 678, 693 (2001); Yick Wo v. Hopkins, 118 U.S. 356 (1886). Even aliens not within the United States are entitled to some constitutional protection, at least with respect to governmental actions taken within the United States that affect their interests. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) (extending due process limits on personal jurisdiction to claim against Japanese corporation). With respect to governmental actions taken wholly outside the United States, constitutional protection has been less certain. In the nineteenth century, the Supreme Court expressed skepticism about the extent to which the Constitution applied in this situation. See, e.g., In re Ross, 140 U.S. 453, 464 (1891) (reasoning that the Constitution did not apply to the trial of an American seaman by an American consular tribunal in Japan because “[t]he Constitution can have no operation in another country”). In the Insular Cases, the Court held that the United States need only confer “fundamental” constitutional rights on citizens and aliens alike in “unincorporated” possessions abroad over which the United States exercised sovereignty. See, e.g., DeLima v. Bidwell, 182 U.S. 1 (1901). For a comprehensive discussion of this line of cases, see Neuman, Whose Constitution? 100 Yale L.J. 909 (1991). What is the status of Ross and the Insular Cases after the decisions excerpted above?

(3) Professor Neuman identifies four possible approaches to the application of constitutional rights. First, a “universalist” approach “require[s] that constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place.” Second, a “membership” approach “legitimates government through the idea of an actual or hypothetical agreement embodying the consent of the governed who have established the state and empowered it to govern.” On this view, “beneficiaries have rights based in the contract; nonbeneficiaries are relegated to whatever rights they may have independent of the contract.” The only difficult issue is the identity of the parties to the contract. Third, under a “territorial” model, “the Constitution constrains the United States government only when it acts within the borders of the United States.” Fourth, and finally, a “balancing” approach holds that “the government’s reduced right to obedience [abroad] and reduced means of enforcement [abroad] may call for a reciprocal reduction in individual rights [abroad].” See Neuman, supra, at 916-921. Which of these four approaches is normatively most attractive? Which does the U.S. Constitution embrace? Which approach is embraced by each of the opinions excerpted above?

(4) Are you convinced by the reasoning of the Reid plurality? Does the plurality’s claim that the United States “can only act in accordance with all the limitations imposed by the Constitution” beg the question whether the Constitution limits federal action abroad? Are you convinced by the inferences of extraterritorial reach that the plurality draws from Article III, §2? Do you think the drafters of Article III had extraterritoriality in mind? Even if we accept the inference of extraterritoriality from Article III, should we draw the same conclusion from the Fifth and Sixth Amendments’ “sweeping references to ‘no person’ and to ‘all criminal prosecutions’”? In answering these questions, what is the relevance, if any, of Congress’s Article I power to “make Rules for the Government and Regulation of the land and naval forces”?

(5) What are the differences in reasoning between the Reid plurality and Justice Harlan’s concurrence? Harlan disagrees with “the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world.” And yet he concludes that the United States must respect the right to trial by jury and indictment by grand jury when prosecuting civilians abroad for capital crimes. How does Harlan know the extent to which the Constitution applies abroad? What guidance does he provide for future cases?

(6) Is Verdugo-Urquidez consistent with Reid? Do you agree with the Verdugo-Urquidez majority that the Fourth Amendment violation, if any, took place in Mexico rather than in the United States? In a trial within the United States, should the scope of constitutional protection turn on the characterization of where a violation occurs? What are the criteria for determining where a violation occurs? What about Justice Brennan’s claim that, by making Verdugo-Urquidez the subject of a U.S. investigation, and by holding him accountable under U.S. law, the United States made him one of the “governed” for purposes of the Bill of Rights? Is the majority in Verdugo saying anything more than that there is an American “interest” in applying the Bill of Rights to citizens, and sometimes in applying substantive law to noncitizens, but no interest in applying the Bill of Rights to noncitizens (or, to noncitizens acting abroad)?

(7) The majority and Justice Scalia disagree in Boumediene about the implications of Johnson v. Eisentrager, 339 U.S. 763 (1950). In Eisentrager, German nationals were captured by the U.S. Army in China, tried and convicted in China by a U.S. military commission for violations of the laws of war, and imprisoned in Germany. In an opinion by Justice Jackson, the Supreme Court held that the detainees were not entitled to petition for habeas corpus relief in a U.S. court. The Court observed early in its opinion that: “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” The Court subsequently noted that each petitioner in this case:

(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

While acknowledging that aliens within the United States are entitled to the “privilege of litigation,” the Court explained that this was because “permitting their presence in the country implied protection,” whereas “no such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.”

Does the majority in Boumediene persuasively distinguish Eisentrager?

(8) Boumediene rejects a “formal sovereignty-based test” for determining the scope of the constitutional right of habeas corpus for non-citizens, and instead applies a multi-factored test that requires consideration of the citizenship and status of the detainee, the adequacy of the process preceding detention, the nature of the sites where apprehension and then detention took place, and the practical obstacles to vindicating the writ. What are the separation of powers concerns that lead the Court to reject sovereignty as the test? How determinate is the functional test? Does the functional test involve courts too heavily in scrutinizing the details of U.S. operations overseas? What does Boumediene imply about the scope of constitutional rights other than the right of habeas corpus? For U.S. military detentions in places other than Guantanamo?

(9) Some answers to the questions in the previous note can be found in Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010). The court there held that that Section 7 of the Military Commissions Act of 2006 (“MCA”)—the statutory preclusion of habeas corpus review that Boumediene invalidated with respect to the detainees at Guantanamo Bay, Cuba—was constitutional as applied to three alien detainees held at Bagram Airfield Military Base in Afghanistan, at least two of whom were captured outside Afghanistan. The court acknowledged that the detainees in Afghanistan received less extensive procedural protections than the detainees in either Eisentrager or Boumediene. But it concluded that two other factors cut sharply against habeas relief and controlled the disposition of the case. First, whereas “[t]he United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property,” at Bagram “there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the ‘host’ country.” And second, “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ” were significant because Afghanistan remains a “theater of war,” in contrast to Eisentrager (which concerned detention in a place where active hostilities had ceased but many security threats remained) or Boumediene (which involved detention in a place where there were no active hostilities and few security threats from the enemy). The court took note of the petitioners’ concern that the government “chose the place of detention and might be able ‘to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will,’” but insisted that “that is not what happened here” and stated that it did not need to make any “determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation.”

Did the court in Maqaleh properly reconcile Eisentrager and Boumediene? Why should the ongoing military conflict in Afghanistan justify the denial of habeas rights to detainees picked up outside of Afghanistan and brought to Bagram? Why is the court so sure that the Executive did not send these detainees to Afghanistan in part to avoid judicial review? Should the Executive’s reasons for sending a detainee to Afghanistan as opposed to Cuba matter to the constitutional scope of habeas corpus? Why or why not? If the Executive branch transferred detainees from Guantanamo to Bagram, would they no longer be entitled to seek habeas corpus review?

1. Title VII defines “employee” as: “an individual employed by an employer, except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.” 42 U.S.C. §2000e(f).

29. Cf. The Peterhoff, 5 Wall. 28, 578: “In cases such as that now in judgment, we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country.”

* The Court’s interesting historical discussion is simply irrelevant to the question whether an alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws. Nor is comment on illegal aliens’ entitlement to the protections of the Fourth Amendment necessary to resolve this case.

7. The Fourth Amendment contains no express or implied territorial limitations, and the majority does not hold that the Fourth Amendment is inapplicable to searches outside the United States and its territories. It holds that respondent is not protected by the Fourth Amendment because he is not one of “the people.” Indeed, the majority’s analysis implies that a foreign national who had “developed sufficient connection with this country to be considered part of [our] community” would be protected by the Fourth Amendment regardless of the location of the search. Certainly nothing in the Court’s opinion questions the validity of the rule, accepted by every Court of Appeals to have considered the question, that the Fourth Amendment applies to searches conducted by the United States Government against United States citizens abroad. A warrantless, unreasonable search and seizure is no less a violation of the Fourth Amendment because it occurs in Mexicali, Mexico, rather than Calexico, California.

9. The majority places an unsupportable reliance on the fact that the Drafters used “the people” in the Fourth Amendment while using “person” and “accused” in the Fifth and Sixth Amendments respectively. The Drafters purposely did not use the term “accused.” As the majority recognizes, the Fourth Amendment is violated at the time of an unreasonable governmental intrusion, even if the victim of unreasonable governmental action is never formally “accused” of any wrongdoing. The majority’s suggestion that the Drafters could have used “person” ignores the fact that the Fourth Amendment then would have begun quite awkwardly: “The right of persons to be secure in their persons.…”

11. The last of the Insular Cases cited by the majority, Downes v. Bidwell, 182 U.S. 244 (1901), is equally irrelevant. In Downes, the Court held that Puerto Rico was not part of “the United States” with respect to the constitutional provision that “all Duties, Imposts and Excises shall be uniform throughout the United States,” U.S. Const., Art. I, §8, cl. 1. 182 U.S., at 249. Unlike the Uniform Duties Clause, the Fourth Amendment contains no express territorial limitations.

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