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Due Process and Counterterrorism
Amos N. Guiora
Counterterrorism—like terrorism—is a reality. Nations have the absolute obligation and right to protect innocent civilians against those seeking to harm them. However, implementation of counterterrorism obligations must be tempered by due process. The essence of democracy is granting—and protecting—the civil and political rights of attacker and attacked alike. Failure to provide due process to individuals suspected of involvement in terrorism leads a society down a slippery slope from which there is no return. While controversial and perhaps unappetizing, the true test of democracy is protection of those seeking to attack it.
This Article examines counterterrorism from the perspective of detention, interrogation, and trial, and in particular how these three processes are articulated and implemented. The broader question is whether the contemporary counterterrorism paradigm is based in due process or in a legal, not necessarily lawful, regime that minimizes individual rights. That is, does civil, democratic society discard core principles in the face of an ongoing, viable threat; or are political rights and national security rights effectively balanced in order to protect both? Answering this question requires analyzing the interface between threats and rights, and in particular the extent to which society responds to the former while protecting the latter.
The challenges facing national decision-makers are extraordinary, as the public demands concrete measures in response to attacks. Decision-makers are charged with simultaneously protecting both the law and the public in accordance with core values of rights and morality. Balancing these competing responsibilities manifests in what I refer to as the “dilemma of the decision-maker.” The terrorism/counterterrorism paradigm manifests these tensions and uncertainties in a more powerful manner than perhaps any other issue confronting contemporary decision-makers and the public. The public’s visceral reaction to feeling threatened is reflected in a 2009 survey, finding that “[f]ifty-eight percent (58%) of U.S. voters say waterboarding and other aggressive interrogation techniques should be used to gain information from the terrorist who attempted to bomb an airliner on Christmas Day.”
Terrorism, in its broadest articulation, is the constant threat faced by decision-makers mandated with ensuring that national institutions are sufficiently prepared to act both proactively and reactively; preferably the former, but if need be, the latter. The public demands solutions and minimal accommodation of terrorists. However—public demands notwithstanding—operational counterterrorism cannot justify discarding civil and political rights. Benjamin Franklin’s much-cited words of wisdom—“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety” —capture the essence of this constant and unremitting tension. Franklin’s words concisely and accurately reflect the overwhelming danger posed by overreaction to a clear and present danger, whether perceived or real. With respect to the paradigm before us—due process and counterterrorism—Franklin’s words spoken more than 200 years ago capture the essence of the existential, philosophical, legal, and practical dilemmas of counterterrorism conducted in societies subject to the rule of law.
Addressing this powerful tension, fraught with danger, is a fundamental challenge confronting decision-makers on a daily basis. Resolving it effectively defines the essence of a democratic regime. In exploring these competing tensions, this Article is divided into the following six Parts:
Part 1: Terrorism defined;
Part 2: Due process defined in the context of counterterrorism;
Part 3: Detention criteria and standards;
Part 4: Interrogation regimes and rights;
Part 5: Judicial forums; and
Part 6: Moving forward.
I. Terrorism Defined
Applying due process to counterterrorism initially requires defining terrorism; otherwise, the discussion is vague and amorphous. While the requirement to define terrorism is largely—but not unanimously—agreed upon as essential, much disagreement surrounds the actual definition. To that end, I propose the following definition, which addresses the core essence of terrorism:
Terrorism is an act by an individual or individuals intended to advance one of four causes: religious, social, economic, or political; for the purposes of advancing the identified cause, the actor kills or harms innocent civilians or causes property damage to innocent civilians or intimidates the civilian population from conducting its daily life.
This definition incorporates the critical aspects of attacking civilian targets randomly for the purpose of advancing a specific cause, devoid of pecuniary or personal gain for the actor.
Counterterrorism should be simultaneously viewed from two distinct perspectives. One branch of counterterrorism consists of operational measures, ranging from detention to imposition of administrative sanctions to killing suspected terrorists. The other branch is comprised of “soft” measures, ranging from building schools and hospitals to economic investment and infrastructure development. The latter branch’s target audience is those who can be dissuaded. These are individuals who understand that terrorism does not benefit their families or communities, but are dependent on concrete measures demonstrating that the benefits of progress and modernity outweigh the harm terrorism inflicts.
The burden is—fairly or unfairly—imposed on the nation-state to demonstrate the positives inherent to progress and development. Failure to fully embrace this burden reinforces the negativity that is an inevitable by-product of operational counterterrorism, which inherently conjures negative images for those living amongst the terrorists. While those who live amongst terrorists may oppose terrorism principally for the damage caused to the community and therefore—tacitly—understand the legitimacy of operational counterterrorism, speaking out in opposition exposes them and their families to extraordinary harm and risk. Therefore, soft counterterrorism is a critical weapon the nation-state can use that is no less potent than more conventional counterterrorism weapons.
To determine the efficacy of particular counterterrorism measures—whether operational or soft—terms must be defined. Framing the discussion with adequate parameters allows for rigorous analysis. One of the realities of homeland security is that threats, risks, and dangers are largely murky and, consequently, unarticulated to the public. However, in order to maximize protection of due process rights, viable, direct, and concrete threats must be distinguished from indirect threats that do not pose imminent harm to the nation-state. The danger in decision-makers viewing all threats as viable and valid is to minimize cautious discernment, thereby significantly enhancing the danger of overreaction and, therefore, violations of individual rights.
One of the key challenges of counterterrorism is that it is difficult to identify targets; this suggests a fundamental lack of clarity and conciseness. Therefore, decision-makers must specifically determine and narrowly define both what is a legitimate target and when the target poses a threat justifying operational engagement. The failure to engage in a robust debate regarding both definition and application directly contributes to operational overreaction, which has tactical and strategic ramifications that, in the main, prevent effective counterterrorism, whether “operational” or “soft.”
Definitions minimize amorphousness, thereby reducing wiggle room otherwise available to the executive branch. This is particularly important with respect to the due process discussion; by failing to clearly define what rights are to be protected, the ability to minimize rights is greatly enhanced. In the tension and fear that pervade the terrorism/counterterrorism discussion, minimizing individual rights in response to either a threat or an attack is, lamentably, a recurring theme. American history is replete with examples of panic responses that directly—and unjustifiably—influenced the due process rights of innocent individuals deprived of civil and political rights. While lawful counterterrorism involves imposing the full weight of government power on individuals, its legality hinges on determining whether the relevant state action is predicated on person-specific due process principles. Otherwise, both the rule of law and morality take a dangerous and unwarranted back seat to collective punishment based on an approach most accurately described as “round up the usual suspects.”
II. Due Process Defined in the Context of Counterterrorism
To determine the range and application of due process in the counterterrorism paradigm, we next turn our attention to the first document believed to directly address the question of due process, the Magna Carta. Chapters 39 and 40 of the Magna Carta state: “No freemen shall be taken or imprisoned . . . or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we refuse or delay, right or justice.” According to the 1354 statutory rendition of this text: “486o Man of what Estate or Condition that he be, shall be put out of his Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”
Clearly drawing on those words, the Fifth Amendment to the U.S. Constitution guarantees similar rights:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Justice Harlan, in his much-cited dissent in Poe v. Ullman, wrote that due process:
[I]n the consistent view of this Court has ever been a broader concept. . . . Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Thus the guaranties of due process, though having their roots in Magna Carta’s “per legem terrae” and considered as procedural safeguards “against executive usurpation and tyranny,” have in this country “become bulwarks also against arbitrary legislation.”
In the aftermath of the Civil War, the U.S. Congress passed the Thirteenth, Fourteenth, and Fifteenth Amendments, collectively known as the Reconstruction Amendments. The Fourteenth Amendment was intended to guarantee the rights and civil liberties of recently freed slaves, by denying states the right to abridge privileges and immunities of U.S. citizens without due process:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In a similar vein, the Treaty of Lisbon does not contain a specific provision regarding due process, but as amended by the Treaty of Lisbon, the Treaty on European Union gives binding force to the European Charter of Fundamental Rights, which was originally proclaimed in 2000 and revised in 2007. The European Charter of Fundamental Rights has specific provisions addressing both judicial protection and the right to a fair trial. According to Article 47:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Similarly, according to Article 48: “1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”
In spite of the above, a decade after 9/11, civil democratic society seeking to establish counterterrorism policy predicated on the rule of law has largely failed to satisfactorily address two core questions: how to apply due process and to whom in the context of counterterrorism. The failure to do so results directly from an unwillingness—or inability—among these decision-makers to articulate with consistency and certainty the limits of operational counterterrorism. Rather than developing a coherent policy reflecting a successful melding of legitimate operational requirements with self-imposed restraints, the Bush and Obama Administrations have either implemented measures that violated international and domestic law or seemed incapable of developing a consistent, articulated coherent policy.
While President Obama signed an Executive Order ordering the closure of the Guantanamo Bay detention center for the purpose of discontinuing trials before Military Commissions, in April 2010 the Obama Administration reinstituted the Military Commissions. It is unclear whether this represents reversal of a policy previously articulated but not implemented, or a stopgap measure. Whatever the explanation, the Obama Administration has largely failed to satisfactorily address the rule-of-law questions essential to creating and implementing counterterrorism policy that ensures implementation of due process guarantees and obligations. For example, the Administration has failed to resolve whether Article III courts are the proper judicial forums for suspected terrorists. Perhaps this continuing failure is reflective of political infighting, as demonstrated in the backtracking with respect to Khalid Sheikh Mohammed’s trial. The result is a disturbing failure to ensure due process for individuals suspected of involvement in terrorism.
More fundamentally, the status of individuals detained post-9/11 has not been uniformly or consistently articulated or applied. That is, varying definitions have been articulated at different times, reflecting legal and policy uncertainty directly affecting the ability to establish and consistently apply a legal regime based on due process. For thousands of individuals whose initial detention was based on questionable intelligence and subsequent, inadequate habeas protections, the current regime is inherently devoid of due process.
I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather, they are a hybrid of both. To that end, I propose that the appropriate term for post-9/11 detainees is a combination—a convergence of the criminal law and law of war paradigms—best described as a hybrid paradigm.
Over the years, terms such as enemy combatant, illegal combatant, unlawful combatant, and illegal belligerent have been used to describe an individual engaged in combat who either has lost his status as a soldier, or never acquired it in the first place. Articulating this definition and determining the status of the enemy are of the utmost importance, particularly in the context of due process considerations.
The hybrid paradigm is philosophically and jurisprudentially founded on the principle that the accused must have judicial resolution of his status before a court of law. However, as touched on in subsequent sections, the American criminal law process is largely inapplicable to the current conflict. Hence, to guarantee the suspect certain rights and privileges in accordance with due process principles, the hybrid paradigm is predicated on criteria-based initial detention and subsequent remand decisions, interrogation methods that do not include torture, the right to appeal conviction (regardless of before what court convicted) to an independent judiciary, the right to counsel of the suspect’s own choosing, known terms of imprisonment, and procedures to prevent indefinite detention.
Justice O’Connor’s unfortunate words in Hamdi v. Rumsfeld—“the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided”—are extraordinarily problematic and troubling. Simply stated, the Constitution does not contain a rebuttable presumption that favors the state at the expense of a defendant’s rights. O’Connor’s unfortunate phrasing is, largely, in accordance with the late Chief Justice Rehnquist’s judicial philosophy with respect to the role of the Supreme Court during armed conflict: “The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.”
In analyzing the application of due process to counterterrorism, Justice O’Connor’s words highlight the essence of the philosophical, existential, and legal tension between powerful competing standards and tests. The essence of Justice O’Connor’s unfortunate phrasing is to suggest that at the critical confluence—the actual meeting place—between legitimate individual rights and equally legitimate national security rights, the Constitution’s protections are not to be fully extended to the defendant.
In the coming Parts, I examine how—if at all—due process has been applied with respect to detention, interrogation, and trial paradigms; the “guide” will be the principle that due process is essential for counterterrorism to be lawful and moral. To what extent it should be applied is an implementation question; the principled decision that has been largely avoided by successive American administrations is whether it should be applied at all. While the Supreme Court has addressed the habeas corpus issue in Boumediene v. Bush and Judge Bates did the same in Al Maqaleh v. Gates, my focus will be on the executive branch and how it has applied—or not applied—due process to counterterrorism. That is the essential question to be examined; it is to that I turn my attention.
III. Detention Criteria and Standards
Detention—depriving an individual of his freedom—is lawful in the American criminal law paradigm, requiring probable cause pertaining to past acts. The initial arrest, provided exigent circumstances do not exist, requires an arrest warrant issued by a “neutral and detached magistrate” in response to a request submitted by law enforcement based on evidence or sourced information. In addition to the initial detention, the court may conclude that continued detention is warranted, predicated on a variety of factors including severity of the crime, danger posed by the suspect, and whether the individual is a possible flight risk. The presence of these additional factors allows the court to require additional detention. This detention model, with varying degrees of interpretation subject to country-specific criminal procedure codes, is largely representative in countries adhering to the rule of law and separation of powers between the executive and judiciary. Judicial review of the executive is essential to preserving liberty and due process.
However, in the immediate aftermath of 9/11, the Bush Administration established an alternative paradigm for those detained in the so-called “Global War on Terrorism.” Rather than relying on the traditional model, the Administration created an alternative model that is fundamentally deficient with respect to due process. Devoid of probable cause standards, much less review by an independent judiciary, the Bush Administration implemented the unitary executive theory paradigm, a system devoid of probable cause standards that has been actively advocated by Professor John Yoo and David Addington amongst others.
The significance of the unitary executive theory in the due process discussion is profound: in essence, it significantly minimizes the role and power of the legislature and judiciary with respect to counterterrorism. The unitary executive theory raises profound questions regarding the application of established constitutional principles of separation of powers and checks and balances to counterterrorism. According to its proponents, the theory establishes a constitutional model whereby the executive assumes extraordinary powers at the absolute “expense” of the judiciary and legislative branches.
With respect to due process—the rights so carefully protected by the Fifth and Fourteenth Amendments—the Bush Administration’s approach was to create a paradigm that largely denied detainees their fundamental rights. Justice Stevens’ dissent in Rumsfeld v. Padilla addressed this directly:
Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention. At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process. Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the in-formation so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.
The need to develop standards in determining when and why an individual may be detained is critical to establishing a due process predicated paradigm. As Justice Stevens’ dissent makes clear, the Bush Administration’s detention policy, with respect to post-9/11 detainees, was devoid of minimal due process standards. While this was in accordance with the worldview articulated by senior officials, it fell short of meeting constitutional standards according to Justice Stevens. However—and the caveat is essential—the appropriate query is whether 9/11 presented a threat that justified denying basic due process rights.
In other words, is America’s national security sufficiently threatened to deny due process both with respect to initial and continued detention? While former U.S. Secretary of Defense Rumsfeld categorized the individuals detained in Guantanamo as the “worst of the worst,” facts indicate that his assessment was not accurate. The number of detainees released without any judicial process suggests that Rumsfeld’s statement was based neither on careful analysis nor articulated criteria.
In the criminal law paradigm, a suspect’s remand requires independent judicial authorization; in the Military Commission’s model, a detainee’s remand would require neither judicial authorization nor review. Although the Court in Boumediene held that enemy combatants detained in Guantanamo have a constitutionally guaranteed right of habeas corpus review, and Judge Bates held in Al Maqaleh that some prisoners captured outside the zone of combat and detained at a U.S. military base in Afghanistan had a right to challenge their imprisonment, the reality is the following: hundreds of detainees are presently held—directly or indirectly—by the U.S. in a detention paradigm that can best be described as indefinite detention. While uncertainty—perhaps ambiguity —was understandable in the immediate aftermath of 9/11, it is incomprehensible ten years later.
According to the U.S. Constitution, “The 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.” In the due process discussion, denying detainees the “Great Writ” is a fundamental violation of an otherwise guaranteed right for American citizens. While that right is guaranteed to American citizens, Professor David Cole has written:
As politically tempting as the trade-off of immigrants’ liberties for our security may appear, we should not make it. As a matter of principle, the rights that we have selectively denied to immigrants are not reserved for citizens. The rights of political freedom, due process, and equal protection belong to every person subject to United States legal obligations, irrespective of citizenship.
At the confluence between due process, habeas corpus, and counterterrorism lies the question if, as Cole writes, rights and protections are to be extended to persons subject to U.S. legal obligations but not implicitly protected. Judge Bates’ decision affirms that principle by expanding the right to a category of individuals not previously granted the privilege. The dangers of not granting the right are extraordinary: the creation of a permanent class of individuals not entitled to independent judicial review whose status is best defined as “indefinite detention.”
The question of whether to extend constitutional protections to non-citizens was originally addressed in the Dred Scott decision, which held that the Fifth Amendment was not limited to the geographic boundaries of the states, but rather, such protections were extended to all incorporated territories of the United States. In the 150 years since Dred Scott, the Court has discussed similar cases with two distinct “lines of demarcation” important for determining detainee rights: first, distinguishing between individuals within and outside of the United States; and second, distinguishing between citizens and non-citizens.
In discussing these two issues, case law slowly extended constitutional protections to include non-citizens, provided they could demonstrate cognizable ties to the United States. The clearest tie was physical location within the borders of the United States. In accordance with Johnson v. Eisentrager, this specific inquiry directly influences this Article’s question, as the decision of Guantanamo Bay’s status as a territory of the United States is of the utmost importance. If Guantanamo Bay is held as a territory of the United States, then the precedent dictates that fundamental rights, like the Fifth and Fourteenth Amendments, should apply. However, if it is not held to be a territory, then the constitutional protections would not necessarily be afforded.
Failing to institutionalize independent judicial review of detention decisions directly resulted in the significant number of detainees held indefinitely. If there are no criteria for determining what actions pose a threat to American national security, the detentions are reflective of an approach best described as “round up the usual suspects.” This is not a policy; it is a tragic reality of the past ten years. Indefinite detention perhaps sounds attractive, for it removes from the zone of combat—indefinitely—individuals suspected of involvement in terrorism. The qualifier “perhaps” is essential to the discussion, for the inherent unconstitutionality of indefinite detention has a pervasive effect on U.S. counterterrorism. Furthermore, the dearth of articulated criteria for initial detention and subsequent remand alike inevitably guarantees that individuals have been wrongly detained precisely because threat has not been defined.
While Judge Bates’ decision was of the utmost importance—more than any Supreme Court holding addressing counterterrorism in the past eight years, save Boumediene—it has not resulted either in a significant re-articulation of U.S. policy nor in the granting of habeas corpus to thousands of detainees. Aside from its decision in Boumediene, the Supreme Court has failed to articulate the rights granted to suspected terrorists. Similarly, Congress has failed to articulate these rights through its constitutionally granted oversight powers. It is essential to balance—or maximize—the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, Judge Bates’ decision seeks to move beyond the amorphousness that has defined much of the debate over the last ten years.
While it has been suggested that habeas hearings satisfactorily provide detainees “their day in court,” the measure does not establish a rights-based counterterrorism regime. Though habeas hearings enable the detainee to come before a judge, the process is fundamentally flawed both because the detention (original and remand) was not premised on carefully delineated criteria, and because adjudication of personal responsibility is not in the offing. The combination represents a significant failure with respect to establishing and maintaining a due process regime. That failure is compounded as we turn our attention to the interrogation of detainees.
IV. Interrogation Regimes and Rights
While the protections of the Fifth and Fourteenth Amendments are inextricably tied to domestic criminal law interrogations, it is presently unresolved whether those rights will be extended to terrorism-related interrogations. Resolving this dilemma requires determining within which rubric terrorism falls: criminal law, law of war, or something else. Answering that question enables determination of the rights, privileges, and protections to be extended to individuals suspected of involvement in terrorism. In particular, with respect to the question this Article seeks to address, the fundamental issue is whether due process rights are to be extended regardless of the paradigm applied.
To that end, from the due process perspective, the ultimate question regarding the Fifth Amendment is whether the right against self-incrimination should be extended to detainees. The question of whether an individual arrested in the “zone of combat” should be read his Miranda rights is likely to be answered in the negative, given the inherent impracticality of American military personnel assuming this responsibility in the actual zone of combat. However, the question of whether such rights and protections should be granted to the detainee once he is in the interrogation setting remains to be satisfactorily resolved.
The Supreme Court has linked the Fifth Amendment’s protections against self-incrimination to general limitations of acceptable interrogation methods. In addressing the question of extending Fifth Amendment rights to non-citizens, courts and scholars have often wrestled with exactly this question. For instance, in Zadvydas v. Davis, the Supreme Court reaffirmed the tradition of applying due process to aliens present within the United States, regardless of their legal status. Specifically, the Court held that the Fifth Amendment is incongruent with a law that would permit the indefinite detention of a non-citizen on domestic soil. Thus, “[o]nce present in the country, aliens can claim due process protection.” In further addressing this question, the court in United States v. Verdugo-Urquidez denied a motion to suppress evidence seized by agents of the Drug Enforcement Agency while searching the home of a Mexican citizen without a warrant.
While the Court held that Fourth Amendment rights are not to be extended to non-citizens, Justice Kennedy, in his concurring opinion, stated that the defendant should be entitled to Due Process Clause protection under the Fifth Amendment when his case finally went to trial. Specifically, the Court ruled that Fourth Amendment protections did not extend to the home of a Mexican citizen in Mexico. The Court, however, made a point to distinguish its holding from one that would have occurred had the appeal been analyzed under the Fifth Amendment. In looking at the language of the Fourth Amendment, the Court noted that the Amendment applies only to “the people.” The Fifth and Sixth Amendments, however, apply to “persons” or “the accused,” respectively. The Court, although not explicitly extending Fifth Amendment protections to non-citizens, used dicta to indicate that such a holding is not beyond the pale.
Although the “Insular Cases” began the process of expanding the Constitution’s reach beyond the territorial boundaries of the United States, they did not specifically touch on the question for non-citizens. Specifically, the Insular Cases achieved four effects relevant to this distinction: (1) they offered explicit legal justification of American endeavors in Puerto Rico; (2) they created a system by which the United States, as a state, could exert power over a foreign entity; (3) they defined the “legitimate” framework for later political struggles relating to the issue of the political status of Puerto Rico and the grating of legal and political rights to Puerto Ricans; and (4) they created a framework that facilitated the establishment of practices that recognized, and validated, the colonial project in Puerto Rico.
In Eisentrager, the Court held that physical presence alone in the country creates an implied guarantee of certain rights, which become even more extensive when an active statement of intent to become a citizen is made. Specifically, the Court noted that, “in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” Applying these principles to the discussion of Guantanamo detainees, the court in Khalid v. Bush held that Guantanamo Bay detainees do not possess any cognizable rights because non-citizens detained by the United States beyond the domestic borders (as the court argued to be the case with Guantanamo Bay) cannot avail themselves of constitutional protections. Rasul v. Bush offers a more appropriate frame of reference on the question of the interplay between the decisions of Guantanamo’s territorial status and the proper extension of constitutional protections. Rasul stands for the proposition that the federal courts have jurisdiction to hear a detainee’s habeas petition whenever they are held in a place where the “United States exercises complete jurisdiction and control.”
The court in In re Guantanamo Detainees, further arguing for constitutional protections for detainees, cited Rasul as recognizing the precedent from Eisentrager barring claims of an alien seeking to enforce the U.S. Constitution in a habeas proceeding outside of a sovereign territory of the United States. However, the court held that the Eisentrager decision, which denied German detainees constitutional rights, was inapplicable to the Guantanamo detainees because the detainees, unlike the Germans, “have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.”
With respect to granting Miranda