The Extraterritorial Constitutional Rights of Aliens in the Federal Circuit

Federal Circuit Bar Journal, Vol. 19, No. 2, p. 273, 2009

27 Pages Posted: 11 Oct 2010 Last revised: 10 Jun 2011

Date Written: April 1, 2009


Using a recent Federal Circuit case, Atamirzayeva v. United States, this article explores how extraterritorial constitutional protections for aliens have changed over time. While the Federal Circuit has largely protected the right to just compensation for aliens who experience "takings" at the hands of the U.S. Government, the Federal Circuit retreated from that view in Atamirzayeva. Citing the 1990 Supreme Court case in which the Supreme Court found that Fourth Amendment rights are not available to aliens outside the United States, Verdugo-Urquidez v. United States, the Atamirzayeva court rejected an alien's claim to just compensation. Shortly thereafter, the Supreme Court in Boumediene v. Bush found that aliens at Guantanamo Naval Base, Cuba, did have some measure of extraterritorial constitutional protection: the right to petition for habeas corpus.

This article advocates creating a single uniform standard for determining which constitutional rights protect aliens abroad. By parsing the Constitution between those provisions that create procedural rights and those which act as a limitation on the powers of Government, courts can come up with standards to protect aliens from unjust treatment, no matter where in the world such treatment occurs. In the famous Insular Cases, the Supreme Court found that it was not appropriate to enforce every provision of the American Constitution ex-Spanish colonies now under U.S. control. The Court instead favored the protection of "fundamental rights" rather than rights that are unique to the American system of justice, such as trial by jury. Extraterritorial constitutional law should be used to protect the "fundamental rights" of aliens, while procedural rights should only be given to those who have a Verdugo-style "substantial connection" with the United States and, therefore, a reasonable expectation of the application of American legal procedures. Because the right to property is an example of a fundamental right, Fifth Amendment takings claims should be able to proceed even when pressed by aliens outside the United States.

Although the possibility of aliens all over the world suing for damages caused by military and political actions of the U.S. Government may have been a consideration for the Federal Circuit in rejecting Mrs. Atamirzayeva's claim, it should not have been. The political question doctrine, which holds that military and political determinations by the political branches of government are nonjusticiable in the courts, should be used instead to dismiss cases that are inappropriate for trial.

Keywords: Extraterritorial Constitutional Law, Fifth Amendment, Alien Constitutional Rights, Verdugo, Boumediene, Insular Cases, Atamirzayeva

Suggested Citation

Creegan, Erin, The Extraterritorial Constitutional Rights of Aliens in the Federal Circuit (April 1, 2009). Federal Circuit Bar Journal, Vol. 19, No. 2, p. 273, 2009. Available at SSRN:

Erin Creegan (Contact Author)

Independent ( email )

No Address Available

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