Extraterritorial Rights and Constitutional Methodology After Rasul v. Bush

Abstract

Professor Roosevelt’s thoughtful article reviews the evolution of doctrine concerning the extraterritorial application of constitutional rights, identifies Rasul v. Bush as marking an opportunity to rethink prior debates, and sketches a new approach to the problem derived from the conflict of laws. Roosevelt’s analysis engages generously, while critically, with my own work on this subject. Although our starting points differ, we agree about many things, including the fact that new solutions could be useful. Nonetheless, I have deep reservations about a conflicts-based approach, as I will explain in this response. Regarding the implications of the jurisdictional decision in Rasul for future litigation on the merits, I agree that the majority opinion strongly suggests in a footnote that foreign nationals in U.S. custody at Guantanamo Bay Naval Base (“Guantanamo”) possess constitutional rights. I agree that the opinion leaves ambiguous the reason why foreign nationals have constitutional rights there—whether because they are human beings in long-term U.S. custody or because of the special character of U.S. authority at Guantanamo. And I agree that the answer for the present is more likely to turn on features peculiar to Guantanamo than on a general exploration of extraterritorial due process. In the words of Justice Kennedy’s Rasul concurrence, “Guan-