Fundamental Norms, International Law, and the Extraterritorial Constitution

Abstract

This Article argues that the functional test articulated in Boumediene v. Bush, which determines whether the Constitution's Suspension Clause applies to executive detention abroad, is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court's opinion. Drawing on Supreme Court precedent and lower court jurisprudence regarding the extraterritorial application of constitutional rights, as well as comparative and historical practice-including the intent of the Framers-the Article seeks to reintegrate the fundamental norms strands of the Boumediene opinion into its functional test, and thus to normatively ground the opinion. It does so by arguing that the functional test for extraterritorial application of habeas rights should be informed by international law, a consideration that the Bounediene decision omitted from its analysis. The Article concludes that utilizing international law's substantive, fundamental, nonderogable norms to help determine whether constitutional protections apply abroad would both allay the Court's practical concerns and ground the Court's test in the important normative principles that in fact underlie its Boumediene opinion. Applied to the habeas context, this analysis suggests that detainees held by the United States military for a prolonged period of time at a military base or other secure facility without being afforded adequate due process are constitutionally entitled to habeas review to assert claims that they are civilians and not enemy combatants.