Dark Sites and the Bill of Rights

On June 7, 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican boy, gathered with a group of his friends along the U.S.-Mexico border for an innocent and, as it would turn out, fatal game. The boys challenged one another to run up and touch the barbed-wire fence that separates the two countries. A short time later, U.S. Border Patrol agent Jesus Mesa arrived on the scene and detained one of the children. Hernandez fled. Seeking refuge under a nearby bridge, Hernandez, according to witnesses, watched Mesa draw his weapon and take aim. Mesa fired twice across the Mexican frontier. One of those rounds struck Hernandez in the head and killed him instantly.

Roughly six months later, the Hernandez family brought suit against the United States, Mesa, and his supervisors. Despite what might have otherwise been a clear-cut case of excessive force, let alone coldblooded murder, the Hernandez family witnessed a federal district court in El Paso, Texas, dismiss each of its claims. Among other things, the court focused on the fact that their son was in Mexico at all relevant points of the fatal exchange; had he been in the United States, this would have been a different story.

The Hernandez family appealed, and, this June, the U.S. Court of Appeals for the 5th Circuit handed down its decision in Hernandez v. United States. Building upon the Supreme Court’s reasoning in Boumediene v. Bush, which held that foreign nationals detained at the Guantánamo Bay naval base are entitled, under the U.S. Constitution, to challenge the legality of their detention in U.S. courts, the 5th Circuit considered how far the Constitution might extend in this particular scenario. But this was no Boumediene.

Here, the court faced yet another unique issue. The individual whose rights the court would ultimately consider was not an enemy combatant in an offshore U.S. prison, nor had he committed any crime in or against the United States. In fact, this individual was not even on U.S. territory when the claim arose. Hernandez, a Mexican national, lacked even an infinitesimal connection to the United States. So, the court was charged, might the Constitution protect him too?

Answering that question in the affirmative, the 5th Circuit reversed the district court’s dismissal of the suit — specifically, the portion against Mesa — and held that the Hernandez family was entitled to invoke the protections of the Fifth Amendment, which guarantees the right to due process, on behalf of their son. In doing so, the court embraced Boumediene‘s call for courts to practically consider whether and to what extent the Constitution could be enforced abroad, rather than adhering to heavy-handed, bright-line rules based only on a nation’s borders. "[D]e jure sovereignty," the court stated, "is not ‘the only relevant consideration in determining the geographic reach of the Constitution.’"

Just as there existed an era when the Bill of Rights had not yet been applied to the states, America has entered a period in which courts are considering the extent to which the Constitution limits the government’s actions abroad, similarly to how the founding document checks it domestically. The 5th Circuit’s decision in Hernandez highlights a burgeoning paradigm shift: a new age of global constitutionalism. One need only look to recent headlines to appreciate the weight that this discussion carries. Whether it is the recent attempts by Guantánamo inmates to claim First Amendment rights or the Obama administration’s interest in opening the door for Europeans to claim privacy violations in U.S. courts, the issues addressed by this movement are of great consequence to the future of U.S. foreign policy.

Cases such as Boumediene and Hernandez indicate not only the courts’ immutable role in defining the Constitution’s meaning in a globalized world, but their obligation to do so. A government that acts beyond the powers granted by its constitution does so without authority or legitimacy. And regardless of whom power is being exerted upon, authority is only as great as can be legitimately traced. To this end, the vital question is not where a government exercises its power; it is how.

* * *

The key to understanding the breadth of the U.S. government’s power lies in an appreciation for the source of that power: the Constitution. Courts and academics have routinely oscillated over the years between several competing perspectives of this foundational text. Of these theories, two are particularly significant to this debate.

The first treats the Constitution as a social compact in which power is granted to the government, namely by "the People," in exchange for protection and rights. Individuals who are outside this exchange are afforded little to no protection. Indeed, by emphasizing the difficulty of establishing a substantive connection with the United States, which would qualify a person for Fourth Amendment protections against unreasonable searches and seizures, this rationale has helped justify aggressive American surveillance programs abroad. As a result, the United States operates beyond its shores without heed to the significant constitutional limitations that exist at home.

This approach has given rise to the recurring sense of lawlessness that has marked U.S. national security policy over the last decade. Recent disclosures about the extent of the United States’ surveillance of its allies — notably, Germany, Mexico, and Brazil — have illustrated the cavalier nature with which American intelligence agencies can carry out their mission while beyond U.S. shores. And in prosecuting the war on terror, the CIA has been accused of both torturing detainees and quite literally snatching terrorism suspects off the streets of foreign nations. These actions have raised serious questions about the United States’ commitment to its stated human rights obligations. The use of this interpretive theory to evade the Constitution’s strictures represents perhaps the gravest threat to the legitimacy of U.S. policy at home and abroad.

The second perspective treats all government action as being subject to the terms and conditions of the Constitution. In other words, the government is a creature of its Constitution; its influence is bounded neither by border nor by demographics. Until recently, this view was largely relegated to academic discourse and was seen as excessively restraining executive power. Furthermore, critics routinely argued that the strengths of the judiciary lie in the courts’ ability to reflect and deliver considered judgment, and not in their ability to quickly react, as is often required for the execution of foreign policy. This fact fueled the courts’ near-categorical deference to executive decision-making under either the foreign policy or national security heading.

Has the United States’ long-standing and increasingly anachronistic adherence to seeing the Constitution as a compact bounded by U.S. borders and agreed to by U.S. citizens and their government generated positive results? Many would argue yes. But if one considers the questionable results of these programs alongside the long-term damage levied upon the legitimacy of the United States, both domestically and internationally, the success of these practices becomes more questionable.

Take, for example, the newfound reliance on U.S. Special Forces to capture and detain high-value targets around the world for domestic prosecution. Just this June, Ahmed Abu Khatallah, a leader of the Sept. 11, 2012, attack on the U.S. compound in Benghazi, Libya, was captured in that country and brought aboard a U.S. Navy vessel off Libya’s coast. There, the FBI’s High-Value Detainee Interrogation Group (HIG) interrogated him without counsel, apparently beyond the typical constraints of constitutional criminal procedure.

And Khatallah’s case is not unique. During the past two years, a number of individuals have found themselves in identical situations. In 2011, U.S. Special Forces captured Ahmed Abdulkadir Warsame in the Horn of Africa. Warsame, a Somali citizen with ties to the militant group al-Shabab, was claimed to have provided weapons, communications equipment, and training to al-Shabab and al Qaeda since 2009. Once captured, he was placed aboard the USS Boxer and interrogated for two months before being brought to the United States for prosecution and afforded counsel.

A growing tendency by courts to embrace the universalist perspective, which sees the Constitution as radiating beyond American shores, leaves policies such as these on questionable legal ground. If the government cannot escape the influence of the Constitution in Cuba or Mexico, what is to stop it from applying aboard U.S. naval vessels? A refusal to acknowledge constitutional limitations beyond the borders of the United States results in the perverse ability of the executive branch to decide when and where the Constitution might apply — a power notably absent from its constitutional grant.

Ultimately, a universalist constitutional perspective must be embraced if longevity, legitimacy, and consistency are laudable goals for U.S. policy. The point at which one nation’s laws begin and another’s end is no longer synonymous with a thin, dotted line on a map. To allow a government unbridled power to act beyond its borders without acknowledging the existing, reciprocal constraints on those very powers would be antithetical to the authority it seeks to wield.

In due time, the scope of protections afforded by the U.S. Constitution will be revisited and, in the eyes of many, reimagined. And while it is true that U.S. national security policy has, traditionally, been within the exclusive purview of the executive branch, it is the judiciary that is unequivocally charged with saying what the law is. This role is vital to the American system of government, and U.S. courts show no sign of dismissing their weighty responsibility. Absent a newfound appreciation for this notion by the executive branch, the war on terror will soon have two fronts: the battlefield and the courtroom. It can only be hoped that, in the end, justice will prevail on both.

Any views expressed here by Joshua Fiveson are made in his personal capacity and do not represent the views of the Department of Defense, the Department of the Navy, or the Supreme Court of Texas.