By Mike Innes - Cross-Posted at CTLab
I've been reporting on the Opinio Juris Insta-Symposium (OPJIS) on the Boumediene Case in dribs and drabs as I stumble through the wealth of offerings from various contributors. My cherry-picking certainly doesn't do justice to the whole of it, and I'm not certain I'll have the time to review the proceedings in toto for CTLab. Suffice it that anyone looking for first-round responses on the case from the law-bloggigentsia should go to it and start digging in. Meanwhile, I cite the bits that catch my eye, the parts that I can relate back to my own research on sanctuary concepts and practices.
Much of the discussion at OPJIS turned on issues of territoriality and territorial jurisdiction of the U.S. Constitution. OPJIS convener Roger Alford introduced the issue in his post, "The Territorial Reach of the Constitution". Citing earlier spatial models of Constitutional jurisdiction - "universalism, membership, territorial, and a balancing approach of global due process" being the major ones - he asks:
So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court's determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality.
My first blush reading of the [Boumediene] case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I'm not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.
Peter Spiro, in his entry "What Difference Does Citizenship Make? Even Less, After Boumediene," noting Alford's emphasis on "territory in marking the boundaries of citizenship," suggests "The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don't."
Alford elaborates. "I want to return to the issue of the Court's discussion of de facto sovereignty," he writes in a later post, "which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court's articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to noncitizens abroad. This has ramifications far beyond the narrow issue of habeas corpus."
My ignorance of legal scholarship notwithstanding, Alford presents what I think is an intriguing typology:
The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.
The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.
The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.
The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that "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." So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the United States.
The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual's physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.
The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan's dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government's power to enforce the law.
This parsing of legal and material space usefully expands on problems that many have addressed over the last seven or so odd years: the limits of sovereign entitlements and protections, the partisan portrayal of certain legal exemptions as legal "black holes", and the like. Bill Banks addressed some of these in "Legal Sanctuaries and Predator Strikes in the War on Terror", his contribution to Denial of Sanctuary: Understanding Terrorist Safe Havens (yes, shameless plug).
Where I think this relates well is to corollary efforts to typologize problems of refuge - everything from the Westphalian model of failed and rogue states (with all the shades of dysfunction and nefarious intent in between), to the guerrilla warfare model of territorially contiguous rear bases and its expeditionary variants in the long war. Chimene Keitner, in a follow up OPJIS post ("Function Over Form"), notes "In the end, this is a case about borders: the borders of habeas jurisdiction, and the border between law and politics. The first has been clarified somewhat, but both remain contested." Indeed. But this is a good start.