Tying Off All Loose Ends: Protecting American Citizens from Torture Beyond America's Borders

Abstract

In the United States, the law prohibits the government from torturing its citizens. U.S. law also prohibits the government from sending its citizens to another country where they would likely be tortured. These two scenarios seemingly covered all possible ways that the U.S. government could bring about the torture of its own citizens - until Munaf v. Geren, 553 U.S. 674 (2008). In Munaf, the Supreme Court posed an intriguing question: Does the law also forbid the U.S. government from transferring custody of an American citizen to a country that will likely torture him, when the U.S. government was maintaining custody of that citizen within, and at the permission of, the country that engages in torture? This Article seeks to definitively close this possible loophole through two points of attack. First, it looks to emerging theories on the extra territorial application of the Constitution and concludes that Fifth Amendment Substantive Due Process extends beyond America's borders to protect her citizens from any government action that would lead to their torture. Second, this Article explores the federal law that ostensibly leaves open the possibility for torture and, after analyzing its drafters' intent as well as the international conflicts that a pro-torture interpretation would cause, concludes that any loophole found is false.