Questions on Verdugo-Urquidez

1) Doesn't it appear, once again, that the lessons of the choice-of-law revolution have been forgotten, as they were in connection with the extra-territorial application of federal statutes? After all, the Constitution is positive law (albeit higher positive law), like any other. So why should the choice-of-law inquiry be fundamentally different from the way it has occurred in the first half of the class?

    For example:
   
    a) To a large extent, 1st Restatement-like categorical rules, which would apply to the Constitution as a whole, are considered (e.g. the purely territorial view or a global view). But why couldn't there be different answers to the question of the extra-territorial scope of the Constitution with respect to different provisions, depending upon the governmental interests involved?

(The Court recognizes that the Fifth and Fourth Amendment might have different scopes, but that appears to be largely a territorial question of when each provision is implicated: Verdugo-Urquidez's protection by the Fifth Amendment occurs when he is in the US at trial.)

    b) There is a hope that the language or legislative history of the Fourth Amendment might answer the question of its territorial scope. Has such an approach been successful in connection with domestic conflicts?

    c) There is no consideration of the competing law and the interests of the nation standing behind that law. Assuming that the 4th Amendment doesn't apply in Verdugo-Urquidez, shouldn't the legality of the search have been assessed in accordance with Mexican law? Or is there some problem with Mexican law binding US governmental officials?

2) The Insular cases appear to look bad for Verdugo-Urquidez. After all, they suggest that provisions of the US Constitution need not apply even to areas subject to US sovereignty. But isn't a primary factor standing behind the Insular cases the fact that there were competing legal systems in the territories of the Philippines, Puerto Rico, and Hawaii, which should not be (fully) displaced? And doesn't that suggest a functional (interest analysis) approach to choice of constitutional law that could recommend the extraterritorial application of provisions of the Constitution if there were not competing foreign governmental interests? As Kennedy puts in in Boumediene: "At least with regard to the Philippines, a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the United States intended to grant independence to that Territory."

3) Doesn't Reid also suggest a functional analysis, given that the competing governmental interests of Germany were small?

4) Isn't a primary worry in Verdugo-Urquidez the problem of constitutional restrictions being put upon the US when engaging in war or espionage? Doesn't that help explain Eisentrager? But why should that be relevant to the question of choice of law? If war or espionage puts limits on the Constitution, oughtn't it do so domestically as well as internationally? At any rate, aren't issues of espionage or war irrelevant to the Verdugo-Urquidez’s case?

5) Should the matter always be whether a provision of the US Constitution or some other nation's Constitutional law applies? Is it possible for there to be a gap of lawlessness? How often does that happen in a normal choice of law context? It is true that the US government may want a lack of legal restraints, because of war or espionage concerns. But, once again, the argument for loosening Constitutional restrictions for war or espionage is not essentially related to questions of choice of law.

6) Consider in the light of the reading, Boumediene v. Bush, 553 U.S. ___ (2008). (The Rasul case, discussed in the reading, concerned the scope of a statute, 28 USC § 2241. The Boumediene case is more relevant, since it held that alien detainees at Guantanamo have a constitutional privilege of habeas corpus.) In some respects the issue in Boumediene is not that instructive. The result might appear to follow from territorial thinking: Although "Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay," Kennedy emphasizes that "the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory." 

But Kennedy appears to be introducing a more modern interest analysis approach to questions of constitutional choice of law. He insists, for example, upon "the Insular Cases' (and later Reid's) functional approach to questions of extraterritoriality." And he notes that there are no competing national interests in the Boumediene case: "No Cuban court has jurisdiction to hear these petitioners' claims, and no law other than the laws of the United States applies at the naval station."