The US Supreme Court may have an opportunity to address the constitutionality of the Military Commissions Act (MCA) of 2006 sooner than many of us thought possible. According to SCOTUSblog, attorneys for 45 detainees at the military prison camp at Guantanamo Bay, Cuba, asked the Supreme Court to rapidly review their attempt to regain the right to challenge their detention in federal court, urging the Court to hold a hearing on the issue on May 7. This request for an expedited review was filed shortly after the D.C. Circuit issued its decision in Boumediene/ Odah on February 20th. The Boumediene/ Odah decision held that the MCA stripped the federal courts of habeas jurisdiction, which the Supreme Court recognized in Rasul v. Bush, and that this jurisdiction stripping was constitutional.
One of the central issues within all of the Guantanamo Bay detainee litigation is and has been whether the Constitution can be applied extraterritorially. That is, does the Constitution apply to people outside the confines of the 50 states? And if so, then where? And does it apply to only citizens of the U.S. or also to non-citizens? In Rasul, the Supreme Court held that constitutional habeas corpus rights applied to places over which the U.S. excercises plenary and exclusive control, i.e. ultimate sovereignty, which includes Guatanamo Bay. As pointed out by the Balkinization blog:
"Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast."
Although the Court held in Rasul that federal courts have jurisdiction over Guantanamo, it never addressed whether the Due Process Clause applies extraterritorially. Whether or not the Due Process Clause will apply to detainees being held at Guantanamo will depend on the theory of constitutional extraterritoriality adopted by the Court in subsequent litigation.
To better understand whether the Due Process Clause applies to Guantanamo detainees, it is part of the indispensable minimum to have a basic understanding of the various theories of constitutional extraterritoriality. Five basic theories interpreting the reach of the Constitution abroad can be extrapolated from various Supreme Court opinions: a territorial approach; a compact approach; an organic approach; and two provision-by-provision approaches, one based on the language of the Constitution and another based on fundamental rights.
First, the territorial approach of In re Ross, 140 U.S. 453 (1891), which simply said the Constitution has no application in other countries. The approach taken by the In re Ross opinion has long since been repudiated by numerous cases, including Reid v. Covert, 354 v. 1 (1957). Under a territorial theory, it could be argued that the Due Process Clause does not apply to the detainees because the Constitution stops at the water’s edge. Since this approach has been repudiated, it is unlikely that the Court will use it.
Second, the compact approach, suggested-- if not fully adopted-- by the Court in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), is the notion that the Constitution is an agreement between the government and its people; consequently, its protections and its provisions only run between the government and the people. That is, the government is only limited when it acts upon the people. Under a compact theory, the Due Process Clause also probably does not apply unless by holding these aliens the government has effectively made them a part of the government for purposes of a compact theory.
Third, the organic approach of Reid v. Covert. That is, the government is a creature of the Constitution and so it can only exercise its power subject to the limits of the Constitution. Under an organic theory, of course, all of the Constitution applies anytime the government acts and anywhere the government acts.
Fourth, a provision-by-provision approach based on language, which seems to be the approach taken by Chief Justice Rehnquist in Verdugo-Urquidez. As the name suggests, the Court analyzes the language of each provision and determines whether the language applies to only some subset of people or more generally whenever the government acts. In Verdugo-Urquidez, Chief Justice Rehnquist focused on the right of the people language in concluding that the Fourth Amendment did not apply to aliens in Mexico. Under a language theory, the Due Process Clause might apply extraterritorially even though the Fourth Amendment does not because the language of the Fifth Amendment refers to no person being deprived of liberty without due process of law.
Finally, another provision-by-provision approach based not on language but rather on due process or on what rights are fundamental. This was the approach of Justice Harlan concurring in Reid v Covert and Justice Kennedy concurring in Verdugo-Urquidez. If the Court were to take a fundamental rights approach, it seems that there would be nothing more fundamental than due process itself. Since the MCA only strips aliens of their rights (see Neal Katyal's arguments), the following language written by Justice Kennedy in Verdugo-Urquidez seems quite applicable:
"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."