Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 10: Transnational seizures: the constitution and criminal procedure abroad
The legal analysis justifying the targeted killing of Anwar al-Aulaqi unleashed an important debate – as well as a torrent of criticism – regarding the administration’s understanding of the Fourth and Fifth Amendment rights of a United States (U.S.) citizen-turned-terrorist abroad. But at least the analysis assumed these constitutional provisions applied. The vast majority of terrorism suspects overseas are not citizens, and without sufficient connections to the U.S. that would, under current doctrine, as commonly understood, provide them with any constitutional rights protections. When coupled with the U.S.’s view that key international human rights treaty obligations do not extend extraterritorially, the legal constraints are few – not just with respect to uses of lethal force, but also with respect to the treatment of non-citizens in U.S. custody. In this chapter, I argue that this is substantively and normatively wrong: that Fourth and Fifth Amendment obligations should be triggered whenever the state effectuates a “seizure,” thereby bringing a person under its direct control, or, in the case of a targeted killing, terminating his life. The chapter proceeds in three sections. Section I provides background on the Supreme Court’s conflicting approach to the extension of constitutional rights abroad. Section II argues that seizures of persons ought to trigger the application of the Fourth and Fifth Amendments, regardless of the location or identity of person being seized.
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