Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 12: Detention at sea: the persistence of territorial constraints on constitutional rights
The extension of constitutional protections overseas remains a subject of controversy in U.S. counter-terrorism law and policy. During the first years of the war on terrorism, the U.S. government stressed limitations on the Constitution’s extraterritorial application to avoid legal constraints. The linkage of rights and territorial sovereignty, coupled with U.S. citizenship, helped provide the rationale for the U.S. detention center at Guantanamo Bay, secret CIA prisons, and the associated practices of rendition and torture. In Boumediene v. Bush, the U.S. Supreme Court eventually rejected an absolutist approach to the Constitution’s extraterritorial application. The U.S. has also increasingly pivoted away from grounding detention policy on territorial considerations, as illustrated by the Obama administration’s pledge to close the prison at Guantanamo and apply uniform standards to the treatment of all detainees in U.S. custody, regardless of location. Yet, territorial-based limitations on constitutional rights remain. They persist not only in litigation involving the remaining prisoners at Guantanamo, but also in the Obama administration’s recent practice of holding some terrorism suspects on U.S. ships before transferring them to the United States for criminal prosecution. This chapter examines this new model of ship-based detention through the prism of the extraterritorial application of constitutional rights under U.S. law. International law might regard a U.S. naval ship as an extension of U.S. territory under the traditional flagship rule.
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