In an era when the United States government wields vast power over individuals in far-flung corners of the world—whether through use of extraordinary electronic surveillance and cyber capabilities, unmanned drones, traditional military power to kill or detain, or other technologies and authorities—the protection of individual rights in the context of national security or foreign affairs activities is of utmost concern. Historically, an individual’s right to receive protection from the U.S. Constitution, other domestic laws, and the courts was circumscribed by sharp categorical distinctions based on geography (location in the United States or abroad), citizenship (U.S. or not), and context (wartime or peacetime). In recent decades, and increasingly so since 9/11, the importance of U.S. citizenship in obtaining constitutional and judicial protection has been decreasing, and formal barriers to legal protection and judicial review based on geography and wartime context have been dissolving.
Professor Andrew Kent explores this important shift in his scholarship on constitutional law, foreign relations law, and national security law. He received an A.B. from Harvard and a law degree from Yale. Before joining the Fordham Law faculty in 2007, he served as a Climenko Fellow at Harvard, an attorney in private practice, and a federal judicial clerk.
In this excerpt from “Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs” 115 Columbia Law Review 1029 (2015), Kent provides conceptual and historical coherence to current discussions of changing individual rights protection in national security and foreign affairs contexts and suggests some factors that might be driving the dissolution of once impermeable boundaries.
It has been quite common in the last decade, when difficult legal questions were raised about individual rights and judicial review—the rights, for example, of noncitizen military detainees at Guantanamo, or of U.S. citizens targeted with drone strikes in Yemen or elsewhere—to hear lawyers assert that centuries-old understandings, precedents, and practices support their arguments. For instance, in the Rasul and then the Boumediene litigation, lawyers and law professors supporting the [Guantanamo] detainees confidently asserted that common law and constitutional principles and practices dating back to the eighteenth century and even earlier clearly mandated that the detainees had a right to habeas review, while lawyers and law professors on the other side just as confidently asserted the opposite. Supporters of rights for detainees and others affected by post-9/11 security actions contended that the Bush administration’s claims that, under traditional understandings, the Constitution did not protect certain persons or places, were attempts to create “legal black holes,” something which was said to be shocking and even un-American.
The effect of all this has been to suggest a kind of continuity in legal thought about how people are protected from overreaching by the U.S. government. But any suggestion of continuity is mistaken. Rather than continuity, there has been enormous change. … [H]istorical understandings about the protection of individual rights in national security and foreign affairs contexts were profoundly different than modern understandings. …
The longstanding form or structure of rights protection was based on categorical rules and boundary drawing. The primary axes along which the protections of the Constitution and domestic laws and courts were delimited were territorial location, citizenship, and enemy status during wartime. For instance, enemy aliens (citizens or subjects of a nation at war with the United States) were barred from accessing U.S. courts during wartime unless they resided in America and had refrained from taking hostile actions against the United States. And all aliens who were outside the United States lacked any rights under the U.S. Constitution. Even if present in the United States (say, as prisoners of war), enemy fighters lacked any right to access U.S. courts and any individual rights under the Constitution. And even citizens could lose protection from the Constitution and courts during wartime when present at sites of actual battles. …
Importantly, these categorical limitations on the domain of protection from the Constitution and courts in the national security area were instantiated by structural doctrines and institutional design choices by Constitution drafters, Congress, and the executive branch. The sharp point of the spear of the national security state was aimed outside the United States. The U.S. military and, when they developed later in American history, foreign intelligence organizations like the Central Intelligence Agency and National Security Agency were generally deployed outward against noncitizens abroad, while internally it was law enforcement agencies like the Federal Bureau of Investigation that took the lead.
In recent years, the older understandings and practices have started to break down. The distinctions between domestic and foreign, enemy and friend, peace and war, and citizen and noncitizen are breaking down, both in the real world and in the law determining the domain of rights and the right to access the courts. Formal barriers to legal protection and judicial review based on categorical distinctions about citizenship, geography, or war are dissolving, and the dissolution of these categorical boundaries is also reflected in changes to the design and operation of the national security state. I call this process “convergence”—previously distinct boundaries are softening and previously distinct spheres are becoming more alike. National security is becoming less an exceptional zone of limited or nonexistent legal protection and instead more like the domestic sphere where robust judicial review provides significant protections from government overreaching. Legal black holes are shrinking or closing entirely.
This Essay aims first to identify and describe these trends, seeking to give a vocabulary as well as a conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Second, as a kind of research agenda for further inquiry, it suggests some possible causal factors that might be driving these changes and, in light of this, makes some predictions about the future.
… [In recent decades, there is] evidence of convergence of domains and closing of legal black holes in a number of areas. First, the importance of citizenship and territorial location to determining rights is decreasing. Second, distinctions between wartime and peacetime are blurring. Third, the operating rules and institutional structures of the national security state are changing to reflect this convergence and softening of categorical distinctions. Fourth, the U.S. law governing foreign relations and national security is losing its distinctiveness, as it assimilates more and more norms from the domestic, peacetime legal regime. And finally, international law is changing in various important respects, most notably its broadening to protect a country’s own citizens in domestic matters, rather than just foreigners in foreign relations contexts. …
The importance of an individual’s citizenship and territorial location to obtaining protection from the laws and courts has declined, and it is possible to imagine a future where they are largely irrelevant. But not all commentators see this kind of convergence. For example, since 9/11, it has been asserted that the U.S. government has targeted and oppressed noncitizens as never before. There is certainly some truth to that. Trial by military commission, detention at Guantanamo Bay, extraordinary rendition to foreign countries, and imprisonment in CIA black sites overseas, where some of the worst interrogation abuses occurred, were all reserved for noncitizens. … But I believe that the more important and more lasting trend in recent years has been toward convergence of the rights of citizens and noncitizens, as well as convergence in rights of people in the United States and abroad. …
[I]n 2008 in Boumediene v. Bush, the [Supreme] Court for the first time held that noncitizens detained by the government in another country have rights under our Constitution, and did so on behalf of detainees of the U.S. military charged with being enemy fighters in the armed conflict against al Qaeda and the Taliban. Although some of the language in Boumediene suggests that decision is limited to a single unique location (Guantanamo Bay, leased by the U.S. government from Cuba) and a single procedural clause of the Constitution (the Habeas Suspension Clause), the decision is not actually so limited. As I have explained elsewhere, Boumediene and other recent cases suggest that noncitizens abroad can now make constitutional claims involving at least due process and separation of powers claims in addition to habeas. And Boumediene’s test for extension of the Constitution abroad is in no way limited to Guantanamo. Eric Posner correctly identified a “cosmopolitan” impulse at the core of Boumediene, a noninstrumental concern for the liberties of noncitizens outside the United States. …
On the same day as it decided Boumediene, the [Supreme] Court, in Munaf v. Geren, heard habeas cases from dual U.S. citizens detained as security threats under the control of the U.S. military in Iraq during the insurgency. The Court implied that the substantive due process clause might provide limits on the treatment of these individuals—who were held by U.S. forces in a zone of active combat. It is unclear at this point how far Boumediene and Munaf will extend habeas corpus and constitutional rights into war zones. But what is clear is that being a noncitizen or an enemy fighter in a foreign war zone is no longer a categorical bar to constitutional rights and judicial review.
The Anwar al-Awlaki drone strike also highlights these trends of extending rights abroad and to enemy fighters. Al-Awlaki was a U.S. citizen who became a high-ranking leader of al Qaeda in the Arabian Peninsula, helping to direct terrorist attacks against U.S. targets from hiding places in ungoverned regions of Yemen. Because he was an enemy fighter in an armed conflict authorized by Congress, and was located outside the United States in a hostile area, older understandings would have treated al-Awlaki as beyond the protection of the Constitution. But in al-Awlaki’s case … the [Department of Justice’s legal] analysis revealed that the executive believes that the Constitution places important limitations on its ability to target U.S. citizens, even when they are enemy fighters in hostile or ungoverned territory. …
Another example of this rights convergence and softening of categorical boundaries is the change in the rules regarding blocking and seizing the property for national security or foreign affairs purposes. Old rules allowed the U.S. government to detain the property of foreign nations, foreign nationals, and U.S. persons residing in enemy nations during wartime. But in recent years, the U.S. government has applied these rules to U.S. persons within the United States and has successfully argued to several lower federal courts that only the most minimal constitutional protections limit that seizure authority. …
The future of national security and foreign affairs is thus likely to see more and more aggressive judicial review and further application and extension of ordinary constitutional and other legal norms. The number of persons, places, or contexts that are legal black holes will continue to shrink, perhaps to zero. National security and foreign affairs will become less and less legally exceptional, as convergence continues apace. …
Because the political actors driving convergence and closing of legal black holes tend to be more associated with the political left of center—for instance, it was the left ofthe Supreme Court plus Justice Kennedy that produced the narrow margins of victory for the detainees in Rasul, Hamdan, and Boumediene—we will likely see more and faster convergence and closing of legal black holes on issues where the right can join in too. So, for example, issues involving property or other economic rights or First Amendment rights for commercial or other entities are ones to watch.
