Thursday, January 05, 2017

The Extraterritorial Constitution and Government Accountability

Jonathan Hafetz

Next month, the Supreme Court will hear arguments in an important case regarding the Constitution’s extraterritorial application. The case, Hernandez v. Mesa, centers on the shooting of an unarmed Mexican teenager by a U.S. Border Patrol agent. The agent was on the U.S. side of the border when he shot the teenager, who was on the Mexican side. The teenager’s family brought a damages suit against the agent under Bivens v. Six Unknown Fed. Narcotics Agents.

Hernandez could turn, in part, on how the Supreme Court interprets its 2008 decision in Boumediene v. Bush (and, more particularly, how Justice Kennedy views his majority opinion in that case). In Boumediene, the Court held that the Constitution’s Suspension Clause, protecting the right to habeas corpus, applied to foreign nationals held at the U.S. detention center at Guantanamo Bay, Cuba, even though the center is located outside U.S. sovereign territory and therefore extraterritorial. The Court rejected the government’s vigorous assertion of categorical limitations on the Constitution’s application beyond U.S. borders based on sovereignty and citizenship and adopted a functional test that elevates the pragmatic aspects of a case over legal formalisms.

  Hernandez confronts the Court with Boumediene’s application to a cross-border shooting as well as its impact on the Court’s prior decision in United States v. Verdugo-Urquidez. There, the Court held that the Fourth Amendment’s Warrant Clause did not apply to the search by U.S. law enforcement agents of a foreign national’s home in Mexico. Although the opinion in Verdugo-Urquidez described a sharp territorial limit on the Fourth Amendment’s extraterritorial application to noncitizens without substantial connections to the United States, Justice Kennedy, who provided the deciding vote, advanced a more flexible, open-ended approach in his concurring opinion, which he later elaborated on in Boumediene. In Hernandez, the Fifth Circuit nonetheless rejected the plaintiffs' deadly force claim on the ground that Fourth Amendment did not apply to a foreign national in Mexico, at least absent any significant voluntary connection to the United States, suggesting a refusal to recognize Boumediene's embrace of a functional approach. It also rejected plaintiff’s Fifth Amendment Due Process Clause claim based on qualified immunity, finding that even if this constitutional provision applied, it was not clearly established at the time.

Hernandez, like Boumediene, underscores the Constitution’s importance in preventing de facto law-free zones and providing a framework for government accountability. The United States’ refusal to recognize the application of the Fourth and Fifth Amendments to noncitizens beyond its borders effectively creates a space where its agents can exercise tremendous power without legal constraints. While international human rights law could help provide such constraints, the United States maintains that the International Covenant on Civil and Political Rights, which prohibits the arbitrary deprivation of life, does not extend extraterritorially. Mexican law, to the extent applicable, does nothing to restrain U.S. Border Patrol agents who remain within the United States. And while the United States might seek to bring criminal charges against individual Border Patrol agents, prosecutorial decisions remain discretionary, and charges have been brought only in one case to date, despite a string of cross-border shootings by U.S. Border Patrol agents. (In Hernandez, the United States considered and declined to bring a prosecution against the agent). In addition to depending on good faith by the executive branch, criminal prosecutions -- with their demanding standard proof and other hurdles -- remain an insufficient mechanism for ensuring accountability since they exclude a wide swath of non-prosecutable, but nonetheless egregious, misconduct by federal agents.

One argument against recognizing constitutional protections under the Fourth Amendment is that it will expose U.S. officials to liability for a host of law enforcement, military, and intelligence activities abroad. (See, for example, Andrew Kent’s posts here and here, describing these downsides, as well as Steve Vladeck’s response here). Similar arguments were made against extending habeas rights to Guantanamo detainees. Doing so, Justice Scalia, warned in Rasul v. Bush, would extend habeas corpus “to the four corners of the earth.” But, in fact, judges subsequently rejected the extension of habeas rights to detainees in Afghanistan, noting the different circumstances presented by a theater of war. An important feature of a functional test is that it leaves courts room to reach a different conclusion in other circumstances. This latitude can, to be sure, result in uncertainty and gaps in legal protections that may seem unwarranted and concerning to advocates. (A detention by U.S. agents may be no less arbitrary merely because it occurs in a theater of war than at Guantanamo). But it also helps mitigate concerns that recognizing constitutional rights in a specific set of circumstances will necessarily have widespread ramifications. Put another way, recognizing a Fourth Amendment right against the use of deadly force in a cross-border shooting will not necessitate recognition of a Fourth Amendment right against electronic surveillance throughout the world. To suggest otherwise, ignores how judicial opinions are typically written and applied.

Even if the Court finds in Hernandez that the Fourth (and/or Fifth) Amendment applies to a cross-border shooting, and that the right was clearly established at the time, it will need to determine that a Bivens remedy is available. Since first recognizing a damages remedy for constitutional violations in Bivens in 1971, the Court has declined to expand its reach widely all types of government activity. But misconduct by federal law enforcement agents remains core Bivens territory, and the Court has continued to emphasize the absence of other remedies and the value of deterrence as important considerations. (Note, for example, its 2012 decision in Minneci v. Pollard, which emphasized the availability of state tort remedies—remedies that do not exist in Hernandez). In opposing Bivens, the United States has cited the “sensitive context of an international cross-border shooting incident” as a "special factor counseling hesitation." But such reliance on the extraterritorial nature of the shooting -- the special factors argument would presumably not extend to the shooting of a foreign national who had crossed the border and entered the United States -- represents a form of double-counting. Once the Court has determined the constitutional right extends extraterritorially, the remedy should as well, absent other special factors, such as an alternative congressional scheme (which does not exist here)

Hernandez, in short, provides the Court with an opportunity to reassert the important link between the Constitution and government accountability. This opportunity lies first in applying Boumediene’s functional test to extend constitutional protections to the border and second in clarifying Bivens' continuing role in ensuring that federal agents are held legally responsible for gross misconduct

[Disclosure: While I am not involved in the Hernandez litigation, I represent a U.S. citizen, with a pending certiorari petition, seeking a Bivens remedy for unconstitutional detention and mistreatment by the FBI abroad]

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