Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law
83 Pages Posted: 8 Sep 2006 Last revised: 27 Oct 2008
Date Written: August 15, 2006
This Article addresses the possible constitutional limits on the ability of the United States to project and apply extraterritorially its criminal laws and, in particular, its anti-terror laws. Although plainly central to exceedingly urgent and important issues presently facing the United States, this topic has been under-treated in academic commentary and muddled in the courts. Yet its analysis pits U.S. sovereignty and prevailing efforts to combat dangerous criminal activity beyond our borders squarely against principles of limited government and individual rights: What sources of lawmaking authority empower Congress to project U.S. law abroad? Does the Constitution protect individual defendants against fundamentally arbitrary or unfair extraterritorial applications of U.S. law? If so, how?
The Article seeks to provide a comprehensive and innovative framework for answering these questions. It argues that while certain structural and due process limits exist given the current constitutional landscape, a synergistic intersection of national and international law supplies the United States with a virtually unconstrained constitutional license to project and apply the core panoply of its anti-terror laws to individuals abroad, even where that individual or the conduct in question has no overt nexus to the United States. Specifically, the international legal doctrine of universal jurisdiction interacts with sources of legislative authority to furnish a sound basis for extending U.S. anti-terror laws anywhere in the world. And where a U.S. law proscribes a 'universal' crime, no Fifth Amendment due process claim stands in the way of the application of that law to the individual accused.
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