Intelligence Law School - Course 1: Lesson 3.1.5 Who is Protected by Constitutional Law?


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LESSON 3: CONSTITUTIONAL LAW


3.1 Introduction to Constitutional Law


3.1.5 Who is Protected by Constitutional Law?


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3.1.5 Who is Protected by Constitutional Law?

3.1.5.1 Rights of Non-United States Persons

I love the Civil Rights Act because it gives me an opportunity to clarify something about the “United States Person” distinction I mentioned at the beginning of the course.

Notice that the Civil Rights Act gives a cause of action not only to “citizens of the United States” but also any “other person within the jurisdiction” who is deprived of constitutional or statutory rights.[1]

This should remind you that while most statutory and administrative law protections in U.S. intelligence law are designed primarily to protect “United States persons,” this doesn’t mean that non-United States persons have no rights while they’re inside the United States.

Foreign nationals who are legally inside the United States do have constitutional rights under the U.S. Constitution, regardless of whether they qualify as a “United States Person” or “permanent resident.”[2]

You can be visiting the United States on a non-immigrant visa,[3] and you have constitutional rights while you’re our guest.

Even if you happen to be an “undocumented” alien, you are still entitled to most constitutional protections regardless of the fact that you’re here illegally.[4]

The Constitution still gives rights to any person voluntarily within our borders.[5]

 

3.1.5.2 Requirement of “Voluntary” Presence within the United States

Now don’t let this “voluntarily” limitation throw you too much.

Ø  I say rights are given to people who are “voluntarily” within the United States because there are some limits to this general rule that apply to foreign nationals who are forced into the United States against their will to stand trial—people who are kidnapped[6] or extradicted here and who have no substantial connection to the United States.[7]

Ø   The voluntary-presence limitation just applies to people who were essentially dragged here to face trial.[8]

Ø  There are two related Supreme Court cases relevant to this:

o   United States v. Alvarez-Machain;[9] and

o   United States v. Verdugo-Urquidez.[10]

o   Both cases arose from the same set of facts surrounding the torture and murder of an American DEA agent named Enrique “Kiki” Camarena and a Mexican pilot working with Camarena named Alfredo Zavala-Avelar.[11]

o   Agent Camarena and his pilot were tortured and killed on Mexican soil by Mexican citizens who were then forcibly brought to the United States to face trial. 

o   The facts surrounding these cases are pretty terrible.

o   Alvarez-Machain was a doctor who allegedly kept Agent Camerena alive as long as possible so he could continue to be tortured by his captors.[12]

o   Alvarez-Machain was forcibly kidnapped and brought to the United States to stand trial.[13]

o   Verdugo-Urquidez was arrested by Mexican authorities in Mexico and brought to the U.S. border where he was taken into custody by U.S. officials.[14]

o   The Supreme Court held the abduction of Alvarez-Machain did not deprive the trial court of jurisdiction to try him, upholding an old doctrine dating back to 1886 known as the Ker-Frisbee Doctrine.[15]

§  It’s called “Ker-Frisbee” because it comes from two Supreme Court cases one called Ker v. Illinois[16] and another called Frisbee v. Collins.[17] 

o   In the other case, the Supreme Court held that the Fourth Amendment did not apply to the warrantless search of Verdugo-Urquidez’s residence in Mexico.[18]

§  The Court explained that this is because the Fourth Amendment does not extend its protections beyond U.S. borders to non-citizens who lack substantial, voluntary ties to the United States.[19]

§  The only reason Verdugo-Urquidez was here was because he was forcibly brought here.[20]

§  That’s not a voluntary connection sufficient to make him one of “the people” protected by the Fourth Amendment.[21]

o   The Verdugo-Urquidez case is important for Fourth Amendment purposes.

o   I talk about Verdugo-Urquidez in Course II: Constitutional Law and Intelligence when explaining who is entitled to Fourth Amendment rights.

o   It’s also important for foreign intelligence operations outside of U.S. territory because it establishes the territorial limits of Fourth Amendment protections very clearly, at least with respect to non-United States persons.[22]

o   I also talk about it in a later international law discussion about the jurisdiction to enforce of U.S. Courts.[23]

 

3.1.5.3 Rights Guaranteed to “the People” v. Rights Guaranteed to All People

There’s another thing I want to highlight before I move on.

Ø  The voluntary-presence requirement from the Court’s decision in Verdugo-Urquidez does not apply to all constitutional rights.

Ø  It it applies only to the constitutional protections that are afforded only to “the people.”

Ø  It doesn’t restrict rights that are given to all persons like those in the Fifth and Sixth Amendments.[24]

o   The Fifth Amendment, for example, starts out by saying that “No person shall be held to answer for a capital, or otherwise infamous crime” etc.[25]

o   No person means no person—not no American person.

Ø  The voluntary-presence limitation applies only to rights given to “the people.”[26]

o   This means rights contained in Amendments that are worded like the Fourth Amendment, which says that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” etc.[27]

o   Also, the First Amendment’s right to free speech, the Second Amendment’s right to bear arms, and various other rights contained in the Constitution.[28]

o   These guarantees are worded so that they apply to “the people,” whereas the Fifth Amendment says that “no person” shall be denied its protections which means nobody.[29]

Ø  I know it’s a fine distinction—maybe even a ridiculous one—but that’s how the Supreme Court sees it, so that’s what we’re stuck with.  

 

Footnotes

[1] 42 U.S.C. § 1983 (“Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, […]”) (emphasis added).

[2] See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.  But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders”); see also generally Bridges v. Wixon, 326 U.S. 135, 148 (1945) (First Amendment rights extend to resident aliens); Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931) (Fifth Amendment’s Just Compensation Clause protects non-U.S. citizens); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (Fifth and Sixth Amendment rights apply to resident aliens); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment rights apply to resident aliens); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (recognizing that the Supreme Court’s precedent establishes “that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country.”).

[3] See 8 U.S.C. § 1101(a)(26) (2010) (Title 8—Chapter 12: Immigration and Nationality) (“(a) As used in this Act—(26) The term "nonimmigrant visa" means a visa properly issued to an alien as an eligible non-immigrant by a competent officer as provided in this Act.”).

[4] See e. g. Plyler v. Doe, 457 U.S. 202, 211-212 (1982) (Equal Protection Clause protects illegal aliens); see also generally INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (applying the Fourth Amendment to protect illegal aliens voluntarily within the United States).

CAVEAT: In United States v. Verdugo-Urquidez, however, Chief Justice Rehnquist’s majority opinion stated in dicta that the Court’s prior holding in INS v. Lopez-Mendoza did not directly resolve the question of whether the Fourth Amendment applies to illegal aliens voluntarily within the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (“The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country.").

The Verdugo-Urquidez decision did not rule on the question of Fourth Amendment rights for illegal aliens voluntarily within the United States either, but the Court’s dicta did indicate that illegal aliens with ties to the community were different than the respondent Verdugo-Urquidez, whose only tie to the United States was that he had been forcibly extradicted here to face trial. See United States v. Verdugo-Urquidez, 494 U.S. 259, 272-273 (1990) (“Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among 'the people' of the United States.”) (emphasis added).

[5] See generally United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (recognizing that the Supreme Court’s precedent establishes “that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country.”).

[6] See United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[7] See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

[8] Still, even foreign nationals who are involuntarily present within the United States to face trial still have basic Fifth Amendment Due Process rights afforded to all criminal defendants. See generally United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring) (“I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant”).

[9] United States v. Alvarez-Machain, 504 U.S. 655 (1992) (Official Case Syllabus: "Respondent, a citizen and resident of Mexico, was forcibly kidnaped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnaping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican Government had protested the Treaty violation,  jurisdiction was improper.

Ø  Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. Pp. 659-670.

o    (a) A defendant may not be prosecuted in violation of the terms of an extradition treaty. United States v. Rauscher, 119 U.S. 407, 30 L. Ed. 425, 7 S. Ct. 234. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois, 119 U.S. 436, 30 L. Ed. 421, 7 S. Ct. 225. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was proper. Pp. 659-662.

o    (b) Neither the Treaty's language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the Mexican Government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current version contains no such clause. Pp. 663-666.

o    (c) General principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent's argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself. It was the practice of nations with regard to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to imply a term in the extradition treaty between the United States and England. Respondent's argument, however, would require a much larger inferential leap with only the most general of international law principles to support it. While respondent may be correct that his abduction was "shocking" and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch. Pp. 666-670.").

[10] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Official Case Syllabus: "After the Government obtained an arrest warrant for respondent -- a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into this country -- he was apprehended by Mexican police and transported here, where he was arrested.  Following his arrest, Drug Enforcement Administration (DEA) agents, working with Mexican officials, searched his Mexican residences and seized certain documents.  The District Court granted his motion to suppress the evidence, concluding that the Fourth Amendment -- which protects "the people" against unreasonable searches and seizures -- applied to the searches, and that the DEA agents had failed to justify searching the premises without a warrant.  The Court of Appeals affirmed.  Citing Reid v. Covert, 354 U.S. 1 -- which held that American citizens tried abroad by United States military officials were entitled to Fifth and Sixth Amendment protections -- the court concluded that the Constitution imposes substantive constraints on the Federal Government, even when it operates abroad. Relying on INS v. Lopez-Mendoza, 468 U.S. 1032 -- where a majority assumed that illegal aliens in the United States have Fourth Amendment rights -- the court observed that it would be odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection.

Ø  Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 264-275.

Ø  (a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion whether or not the evidence seized is sought for use in a criminal trial.  Thus, the Fourth Amendment functions differently from the Fifth Amendment, whose privilege against self-incrimination is a fundamental trial right of criminal defendants.  P. 264.

Ø  (b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures.  This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.  Pp. 264-266.

Ø  (c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters.  Pp. 266-268.

Ø  (d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power.  See, e. g., Balzac v. Porto Rico, 258 U.S. 298. Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment -- which speaks in the relatively universal term of "person" -- has been emphatically rejected.  Johnson v. Eisentrager, 339 U.S. 763, 784. Pp. 268-269.

Ø  (e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country.  See, e. g., Plyler v. Doe, 457 U.S. 202, 212. Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country.  The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens in the United States.  Even assuming such aliens -- who are in this country voluntarily and presumably have accepted some societal obligations -- would be entitled to Fourth Amendment protections, their situation differs from that of respondent, who had no voluntary connection with this country that might place him among "the people." This Court's decisions expressly according differing protection to aliens than to citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment violates the equal protection component of the Fifth Amendment. Pp. 269-273.

Ø  (f) The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its borders.  The rule would apply not only to law enforcement operations abroad, but also to other foreign operations -- such as armed forces actions -- which might result in "searches and seizures." Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation.  Pp. 273-275.").

[11] Rene Martin Verdugo-Urquidez was an alleged Mexican drug kingpin who was convicted of the torture and murder of DEA Special Agent Enrique Camarena Salazar in a separate criminal prosecution in the United States. United States v. Verdugo-Urquidez, No. CR-87-422-ER (CD Cal., Nov. 22, 1988); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico.  He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States.”).

Humberto Alvarez-Machain was a medical doctor alleged to have participated in the kidnapping and murder of U.S. DEA agent Enrique Camarena-Salazar “by prolonging Agent Camarena's life so that others could further torture and interrogate him.” See United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“Respondent, Humberto Alvarez-Machain, is a citizen and resident of Mexico. He was indicted for participating in the kidnap and murder of United States Drug Enforcement Administration (DEA) special agent Enrique Camarena-Salazar and a Mexican pilot working with Camarena, Alfredo Zavala-Avelar. The DEA believes that respondent, a medical doctor, participated in the murder by prolonging Agent Camarena's life so that others could further torture and interrogate him. On April 2, 1990, respondent was forcibly kidnaped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Texas, where he was arrested by DEA officials. The District Court concluded that DEA agents were responsible for respondent's abduction, although they were not personally involved in it.  United States v. Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal. 1990).”).

[12] See United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“Respondent, Humberto Alvarez-Machain, is a citizen and resident of Mexico. He was indicted for participating in the kidnap and murder of United States Drug Enforcement Administration (DEA) special agent Enrique Camarena-Salazar and a Mexican pilot working with Camarena, Alfredo Zavala-Avelar. The DEA believes that respondent, a medical doctor, participated in the murder by prolonging Agent Camarena's life so that others could further torture and interrogate him.”).

[13] See United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“On April 2, 1990, respondent was forcibly kidnaped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Texas, where he was arrested by DEA officials. The District Court concluded that DEA agents were responsible for respondent's abduction, although they were not personally involved in it.  United States v. Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal. 1990).”).

[14] United States v. Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California.  There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial.”).

[15] United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992) (“The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States.”); see also Ker v. Illinois, 119 U.S. 436 (1886) (forcible abduction of a defendant to bring him within the jurisdiction of a court does not deprive that court of jurisdiction to try him for criminal offenses); see also Frisbie v. Collins, 342 U.S. 519, 522, rehearing denied, 343 U.S. 937 (1952) (“This Court has never departed from the rule announced in [Ker] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They  rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”).

The Ker-Frisbee Doctrine is mostly unassailable in practical application, but there are a few exceptions where courts have declined to allow jurisdiction in cases where the kidnapped defendant was subjected to egregious due process violations during the course of his forcible transfer to the United States to face trial. See e.g. United States v. Toscanino, 500 F.2d 267 (2d Cir.), rehearing denied, 504 F.2d 1380 (2d Cir.1974) (holding—on due process grounds—that the Ker-Frisbee Doctrine—which allows U.S. courts to maintain jurisdiction over individuals who are forced into their jurisdiction in order to face trial—was inapplicable to a forcible transfer that involved the kidnapping and torture of an Italian citizen by U.S. agents in Uraguay who held him captive, kept him blindfolded, and beat him repeatedly while interrogating him for several weeks before forcibly transporting him into the territory of the United States to face trial for the crimes he'd confessed to during enhanced interrogation).

[16] Ker v. Illinois, 119 U.S. 436 (1886).

[17] Frisbie v. Collins, 342 U.S. 519, rehearing denied, 343 U.S. 937 (1952).

[18] United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) ("The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.").

[19] See United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (“respondent had no voluntary connection with this country that might place him among 'the people' of the United States.”) (emphasis added).

[20] United States v. Verdugo-Urquidez, 494 U.S. 259, 262 (1990) (“In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California.  There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial.”).

[21] See United States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [...]' That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' [...] 'the people' seems to have been a term of art employed in select parts of the Constitution.  The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the People of the several States') (emphasis added).  While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.  See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because 'he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law').  The language of these Amendments contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases.") (emphasis added).

[22] United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) ("The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.").

[23] See generally Charles Doyle, Congressional Research Serv., Extraterritorial Application of American Criminal Law, (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/94-166_3-26-2010.pdf (“In the area of extraterritorial jurisdiction, the most often cited limitation resides in the due process clauses of the Fifth and Fourteenth Amendments. While the enumerated powers may carry specific limits which govern the extent to which the power may be exercised overseas, the general restrictions of the due process clauses, particularly the Fifth Amendment due process clause, have traditionally been mentioned as the most likely to define the outer reaches of the power to enact and enforce legislation with extraterritorial application.”).

[24] See United States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [...]' That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' [...] 'the people' seems to have been a term of art employed in select parts of the Constitution.  The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the People of the several States') (emphasis added).  While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.  See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because 'he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law').  The language of these Amendments contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases.") (emphasis added).

[25] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

[26] See United States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [...]' That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' [...] 'the people' seems to have been a term of art employed in select parts of the Constitution.  The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the People of the several States') (emphasis added).  While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.  See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because 'he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law').  The language of these Amendments contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases.") (emphasis added).

[27] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”) (emphasis added).

[28] See United States v. Verdugo-Urquidez, 494 U.S. 259, 264-266 (1990) ("The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the People of the several States') (emphasis added).  While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”) (emphasis added).

[29] Note, however, this broad application of Fifth Amendment rights applies only to persons within the United States. The Supreme Court has held that the Fifth Amendment does not apply to foreign nationals being tried outside the United States. See Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that the Fifth Amendment does not apply to the trial of foreign citizens abroad).

 


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