Boundaries of the Fifth Amendment Due Process Clause and Application to Those Detained by U.S. Forces Abroad

Abstract

This paper examines the boundaries of the Fifth Amendment Due Process Clause. Specifically, I explore the issue of whether or not nonresident aliens detained outside the United States, by U.S. forces, possess constitutional rights.In Section II, I begin by examining theories on extraterritorial application of the Constitution. These include the theories of territoriality, social contract, fundamental rights, and mutuality. Each theory contends to be the paradigm in which to view extraterritorial application of the Constitution, and each theory has support from Supreme Court case law. However, my ultimate conclusion is that one “size” does not fit all. Each constitutional right must be examined individually to see which theory courts may apply most practically. Moreover, extraterritorial application of the U.S. Constitution can potentially cover all topics and all legal fields, and therefore courts may choose one theory or another to best serve the circumstances of each case. In Section III, I discuss relevant wartime case law. I conclude that the courts are particularly hostile towards application of due process extraterritorially, perhaps as a consequence of the wartime development of this doctrine. One common aspect of these 'due process' cases is the absence of a due process rights discussion. Even important cases - such as petitions for habeas corpus - often avoid framing the issue in due process terms. I argue that by focusing on issues of governmental power (i.e. jurisdiction) courts can often dismiss without reaching issues of what constitutional rights the detainees may have. By depriving the detainees of judicial review, courts place them outside the reach of the Constitution; the effect is a determination, through their silence, that the detainees have no constitutional rights.