West Law Report

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.

Sixth Circuit Denies Standing To Challenge Terrorist Surveillance Program

Harvard Law Review case summary (Issue 121, Jan 2008): ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (.pdf) (8 pages)

The Terrorist Surveillance Program (TSP) offers a conundrum for the courts and would-be challengers. Many experts have argued that the program was illegal on the grounds that it ignored the warrant requirement congress prescribed in the Foreign Intelligence Surveillance Act of 19781 (FISA) and that it might have violated the Fourth Amendment. But the state secrets doctrine has prevented potential plaintiffs from obtaining proof that they were among the group surveilled under the TSP.3 In a recent decision, ACLU v. NSA, the Sixth Circuit accordingly held that a group of plaintiffs lacked standing to challenge the TSP because they could not show that they personally were injured by it. The judges relied on a strict construction of standing for Fourth Amendment injuries, one developed in cases where plaintiffs sought to challenge individual searches of other people. In the context of secret surveillance programs by the government, the reality is that no plaintiff will be in a position to establish injury with anything approaching certainty. Hence, a more appropriate approach would be to allow standing where plaintiffs can show even a low level of probability they have been or will be among the injured.

Reasonableness of Forcible Seizure and Fourth Amendment

A leading case summery of Harvard Law Review: Scott v. Harris (2007) (12 pages)

Fourth Amendment – Reasonableness of Forcible Seizure

The Supreme Court has long struggled to determine the circumstances under which public officers should be protected from civil liability. In 2001, Saucier v. Katz established a two-pronged test for resolving such qualified immunity claims. In the first step, a court asks if,
“[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right.” Only if the plaintiff establishes a constitutional violation does a court then look to whether the officer is entitled to qualified immunity, determining “whether, at the time of the incident, every objectively reasonable [officer] would have realized the acts violated already clearly established federal law.”

Last Term, in Scott v. Harris, the Supreme Court held that an officer’s use of deadly force to terminate a car chase was not a violation of the suspect’s Fourth Amendment rights and thus did not satisfy the first prong of the Saucier test. The Court’s opinion rested on an unsatisfying constitutional holding, the result of its adherence to the problematic Saucier decision. A better approach would have been for the Court to decline to apply the Saucier standard in the prescribed sequence and instead to decide the case on qualified immunity grounds alone.

United States v. Ankeny

Posted in Amendment 4th, search order, sentence by mrkooenglish on May 15, 2008

Richard M. Re’s comment in Yale Law Journal, United States v. Ankeny: Remedying the Fourth Amendment’s Reasonable Manner Requirement.

Better read the case first:

A conviction and sentence for being a felon in possession of a firearm and possession of an unregistered sawed-off shotgun are affirmed in part where, even if knock-and-announce violation and other aspects of a search amounted to Fourth Amendment violations, suppression was not warranted. However, the judgment is reversed in part and vacated in part as to the sentence, as the convictions were multiplicitous and material errors were made at sentencing.