Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Do individual rights stop at the U.S. border?

October 29, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at controversies related to two cases that apply the Constitution outside of the United States’ borders.


“The decision [of the Fifth Circuit Court] holds that the Fourth Amendment does not apply here because Sergio Hernandez was a Mexican citizen with no significant voluntary connection to the U.S. who was ‘standing on Mexican soil at the time he was shot’ [by a U.S. Border Patrol agent]. That is the extent of its analysis. There is no discussion of any of the pragmatic and context-specific considerations [that the Supreme Court in 2008] identified as central to extraterritoriality analysis.”

– Excerpt from an appeal to the Supreme Court by the mother and father of a 15-year-old Mexican youth who was shot dead five years ago by a U.S. Border Patrol officer standing on the U.S. side of the border, but shooting across into Mexico. The appeal seeks to reinstate a damages lawsuit, based directly on the Constitution, against that agent. The lawsuit was turned aside by the U.S. Court of Appeals for the Fifth Circuit. The Supreme Court may act soon on the parents’ appeal.

Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization…..If people like Amir Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.”

– Excerpt from a decision on October 23 by the U.S. Court of Appeals for the District of Columbia Circuit, rejecting a U.S. citizen’s attempt to sue FBI agents for allegedly torturing him during an anti-terrorism investigation over a period of four months in three different African countries. Amir Meshal, a New Jersey resident, was never charged with a crime. His case may move on to the Supreme Court.


For more than a century – literally, since 1901 – the Supreme Court has been attempting to sort out when the Constitution applies outside the borders of the nation. In a series of rulings in the first two decades of the 20th Century, now known together as the Insular Cases, the court ruled that residents of U.S. territories beyond the mainland did not enjoy all of the rights guaranteed by the Constitution, but could expect to be protected by the most fundamental guarantees. The process of picking and choosing has continued since then, and the results have been mixed.

Overseas, or offshore, application of the rights spelled out in the Constitution was dealt a major setback in 1990, when the court ruled that a Mexican national who was being held prisoner inside the United States had no Fourth Amendment right to challenge a search of his home in Mexico by a joint investigative team from the two countries. That ruling, in the case of United States v. Verdugo-Urquidez, overturned a federal appeals court ruling that the Mexican’s right to privacy had been violated because the search was made without a warrant.

Even a quarter-century later, however, just what that decision actually means about extraterritorial reach for the Constitution remains a matter of considerable debate. The main opinion said that constitutional rights do not apply outside the country to an individual who had no voluntary links to the United States. But Justice Anthony M. Kennedy supplied a necessary fifth vote to make a majority in that case, and his separate opinion suggested that he thought that the specific context of each case might actually make the difference in the analysis.

Justice Kennedy actually followed up those hints five years ago, when he wrote a major opinion for the Court extending the constitutional right of habeas corpus to the foreign nationals that the U.S. was then holding (and scores of whom it still holds) at the military prison at Guantanamo Bay. (The right at issue allows individuals being held prisoner to go to court to challenge the authority for their confinement.) The decision came in the case of Boumediene v. Bush.

That opinion, if understood to apply beyond the specific factual situation of the detainees at Guantanamo, would appear to stand for the proposition that the extraterritorial application of the Constitution’s guarantee of rights depends upon “objective factors and practical concerns” (as Kennedy put it in the opinion), rather than the nearly categorical approach of the Verdugo-Urquidez decision in 1990.

The Supreme Court is now being asked to sort out which approach is the proper one. The parents of a Mexican teenager shot dead while he was in Mexico by a U.S. border agent standing on the U.S. side of the boundary are urging the Justices to declare that the Kennedy mode of analysis in the Boumediene decision should be the controlling one.

In that case, a federal appeals court (the Fifth Circuit Court) applied the formalistic approach, finding that the parents had no claim simply because their son was outside the U.S. and had no personal ties to the United States. The parents’ appeal contended that another federal appeals court (the Ninth Circuit Court) follows a more functional approach, like the one Kennedy laid out in 2008.

Another arena of current constitutional dispute over extraterritoriality of rights guarantees is the federal appeals court in Washington (the D.C. Circuit Court). In a ruling last week, that court split two-to-one in rejecting a citizen’s attempt to sue FBI agents for allegedly torturing him during an investigation abroad of whether he was affiliated with the al Qaeda terrorist network.

While it has generally been understood that the Constitution travels with American citizens whenever they are abroad, their right to sue to enforce those rights depends upon whether Congress or the courts have created a specific legal right to file a lawsuit. Under a 1971 Supreme Court decision (Bivens v. Six Unknown Agents), there is sometimes a right to sue federal law enforcement officials personally for violating an individual’s constitutional rights, when Congress itself has not created a right to sue.

The Supreme Court, however, has been reluctant in the years since 1971 to recognize more than a few constitutional foundations for such a right to sue. In fact, it has instructed lower courts to move cautiously in doing so. And that is what the D.C. Circuit Court did in its new ruling turning aside the claims of a New Jersey man, Amir Meshal, arising out of alleged torture during an anti-terrorism probe abroad.

The appeals court said in that case that it was fashioning a narrow ruling, and barred the lawsuit only in the specific context that the alleged torture occurred overseas and that the investigation was a matter of national security. Courts should seldom fashion a remedy that might intrude on the government’s management of national security policy, the majority said.

With the widening global reach of U.S. government operations, it seems a near certainty that this is a field of constitutional interpretation that will remain lively for years to come.

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