The War on Terrorism and the Extraterritorial Application of the Constitution in Immigration Law

Abstract

For quite some time, the prevailing judicial view has been that it is constitutional for the government to indefinitely (even permanently) detain within the United States aliens who have been stopped at our borders. The justification for these decisions is that even though these aliens are located within the United States they are deemed, under a doctrine known as the "entry fiction," to be outside the territory of the U.S., and thus beyond the reach of the Constitution. Recently, however, courts have struggled with issues involving the definition and scope of the entry fiction. Courts have faced similar issues involving the extraterritorial application of the Constitution in cases involving the current Guantanamo "enemy combatant" detainees. In this Article, Professor Slocum argues that a recognition by the Supreme Court that the current Guantanamo detainees possess at least some constitutional rights should compel courts to conclude that aliens stopped at our borders and detained within the United States also possess constitutional rights, including the right to be free from indefinite detention. Even if the Court declines to recognize that the Guantanamo detainees possess constitutional rights, lower courts should continue to reevaluate the definition and scope of the outdated and unnecessarily harsh entry fiction.

Keywords: terrorism, immigration, constitution, entry fiction, enemy combatant

JEL Classification: K33, K19