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EXTRATERRITORIALITY

Around the turn of the century, the Supreme Court placed strict territorial limits on the application of United States constitutional and statutory law. In the case of In re Ross (1891) the Court held that a citizen could be tried by an American consular court, without INDICTMENT by GRAND JURY and without TRIAL BY JURY, for crimes aboard an American ship in Japan. The Court flatly declared that "[t]he Constitution can have no operation in another country." And in American Banana Co. v. United Fruit Co. (1909) Justice OLIVER WENDELL HOLMES asserted that "[a]ll legislation is prima facie territorial." Although he acknowledged that exceptions could be found in the case of laws applying on the high seas or in "uncivilized" countries, Holmes said "the general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done." No doubt these sweeping statements, even then, were not literally followed. In any event, today DOCTRINES limiting the extraterritorial application of both the Constitution and statutory law have been abandoned.

In REID V. COVERT (1956) the Court effectively overruled Ross and held that Congress could not deprive a citizen of the right to a jury trial in a court-martial abroad where CAPITAL PUNISHMENT was potentially involved. Justice HUGO L. BLACK said: "When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." This decision signaled the end of territorial limitations on the Constitution.

In United States v. Toscanino (2d Cir. 1974) a lower court applied the FOURTH and Fifth AMENDMENTS where American officials instigated enforcement activity by foreign officials that included torture and violated United States treaty obligations. Although other courts have declined to apply CONSTITUTIONAL REMEDIES in the circumstances of particular cases before them, they agree that the Bill of Rights may apply where the United States government instigates conduct that "shocks the conscience." The JUST COMPENSATION clause of the Fifth Amendment has also been held applicable to TAKINGS OF PROPERTY abroad in several lower court cases. As a general rule, therefore, the Constitution now unquestionably applies to acts of government abroad.

At the same time the special circumstances that are invariably present in these cases influence the scope of constitutional protection afforded. Although the court only occasionally confronts these questions, it seems clear that protection against government action abroad is more difficult to obtain than in similar cases without a foreign element. This is especially true when foreign policy or national security interests are at issue, as was the case in UNITED STATES V. CURTISS-WRIGHT EXPORT CORP. (1936). Indeed, in HAIG V. AGEE (1981) the Supreme Court questioned whether the FIRST AMENDMENT would apply at all to government suppression of speech abroad, where the speech threatened American intelligence activity.

Perhaps the most accurate description of the modern approach to extraterritorial application of constitutional law was made by Justice JOHN MARSHALL HARLAN in Reid v. Covert. He took exception to the broad suggestion that "every provision of the Constitution must be deemed automatically applicable to American citizens in every part of the world." He believed that "the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it." The Harlan view seems more likely to prevail in a world of increased American involvement and interdependence than the absolutist approach of Justice Black.

A related issue of historical interest was whether the Constitution applied to TERRITORIES acquired by the United States. Constitutional guarantees limiting legislative and executive power were applicable only when Congress, expressly or by clear implication, "incorporated" the acquired territory into the United States. In unincorporated territories only undefined "fundamental" liberties were guaranteed.

Finally, the courts have repeatedly applied federal statutes to conduct abroad, assuming other jurisdictional prerequisites were met. Occasionally limitations on the application of a particular statute have been imposed, but those limitations have normally been based on the presumed intent of Congress or on international comity, not the Constitution.