Boumediene and Extraterritoriality

Slate's blog on legal issues.
June 12 2008 2:12 PM

Boumediene and Extraterritoriality

In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in  Boumediene resolves a question previously muddled by plurality opinions.
 
Advertisement
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various courts have answered in different ways. As I'd outlined here  when Rasul was pending (Pages 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
 
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases,  United States v. Verdugo-Urquidez (1990), might have expected that when give the chance, he would reconcile the two lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in Reid v. Covert (1956) (concurrence) and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantanamo.

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Weigel
Sept. 20 2014 11:13 AM -30-
  Business
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
  Life
Quora
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.