America Abroad

The single most important feature of American history after 1945 was the United States’s assumption of hegemonic leadership. Europeans had noted America’s enormous potential since at least the nineteenth century. After the Civil War the United States had one of the largest economies in the world, but, as noted earlier in this book, in geopolitical terms it remained a surprisingly minor player. By 1900 the United States was playing a more significant political role. But it was only after 1945 that the nation’s potential on the world stage was fully realized. Victory in the Second World War left the United States in an enviable position. Unlike the Soviet Union, which endured devastating fighting on its territory and lost tens of millions of citizens, the United States had experienced only one major attack on its soil. Thanks to its actions in the war America had great influence in Europe. And the national economy emerged surprisingly vibrant from the years of conflagration, easily dominant over any conceivable rival or set of rivals. When the First World War ended the United States ultimately chose to return to its hemispheric perch. It declined to join the new League of Nations, and rather than maintaining engagement with the great powers of the day, America generally turned inward. The years following the Second World War were quite different. In addition to championing—and hosting—the new United Nations, the United States quickly established a panoply of important institutions aimed at maintaining and organizing international cooperation in both economic and security affairs. Rising tensions with the Soviet Union, apparent to many shortly after the war’s end, led the United States to remain militarily active in both Europe and Asia. The intensifying Cold War cemented this unprecedented approach to world politics. The prolonged occupations of Germany and Japan were straightforward examples of this newly active global role. In both cases the United States refashioned a conquered enemy into a democratic, free-market ally—a significant feat. The United States did not, however, seek a formal empire in the wake of its victory.

Territoriality’s Evolution

At the turn of the last century Americans heatedly debated whether their constitution followed the flag. Did the United States possess a “home-stayin’ constitution,” as the satirist Finley Peter Dunne suggested at the time, or did its foundational rules extend wherever and whenever the federal government governed? Perhaps the newly muscular nature of American power in an overtly imperial age had changed the answer; perhaps the flag was now, in Dunne’s clever words, “so lively that no constitution could follow it and survive.” In the century that followed, of course, the flag became livelier than anyone at the time could have imagined. With the presidential election of 1900 couched as a referendum on the Constitution and the flag, the victory of William McKinley over the anticolonial William Jennings Bryan signaled a new American willingness to embrace empire in places like the Philippines. McKinley’s campaign had declaimed that the flag “has not been planted in foreign soil to acquire more territory, but for humanity’s sake.” McKinley nonetheless did not disappoint the substantial interests that favored more territory. The subsequent ratification by the Supreme Court of a peculiarly American form of imperialism facilitated this expansion. Yet by holding that only some rights applied in the new island possessions, whereas others lost their strength at the water’s edge, the early-twentieth-century Insular Cases cobbled together an odd and unstable marriage of imperialism and constitutionalism. Although it deeply polarized the United States at the time, this debate over the Constitution and the flag is now largely forgotten. Yet as the previous chapter detailed, a very similar debate emerged almost exactly a century later. Whether Guantanamo Bay was a “legal black hole” or a legitimate detention center for dangerous enemy combatants became a topic of often passionate argument the world over. Despite a very different political and legal context, the dispute over Guantanamo focused attention on the geographic reach of American law with an intensity not seen since the early 1900s.

Offshoring the War on Terror

A few days before New Year’s Day, 2002 John Yoo and Patrick Philbin, two lawyers in the Department of Justice, drafted a memorandum for the Department of Defense. The memo was entitled Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba. Shortly after the attacks on September 11, 2001, the Bush administration had announced plans to try suspected terrorists by military commission, a kind of military court. As the memo was being completed, the war in Afghanistan was still ongoing. But coalition forces had taken Kabul and other major cities and had already captured many suspected Al Qaeda members. The Bush administration feared detaining these individuals within the United States and generally rejected the criminal justice model of counterterrorism championed by previous presidents. The United States naval base at Guantanamo, the subject of the lawyers’ memo, was appealing as a long-term site for detention and trial. It was distant from the Middle East, very secure, and, as the Justice Department noted, probably free of the influence of American courts due to its location outside the territory of the United States. In time the detention camp at Guantanamo would become a source of sustained criticism around the world and a major political liability for the United States. But in late 2001, with the World Trade Center site still a smoking ruin, Guantanamo appeared to be a very attractive option to those formulating the legal response to the 9/11 attacks. Two years after the Guantanamo memo was written the New York Times reported that the CIA and the Pentagon were operating a network of offshore prisons in various foreign locations. In these overseas prisons, so reported the Times, were some of the most high-value detainees in the war on terror. Successive stories in the Washington Post revealed that a number of these “black site” prisons were in Europe, and that the CIA had flown individuals there for extensive and coercive interrogation. As the Times reported, the “suggestion that the United States might be operating secret prisons in Europe and the idea that American intelligence officers might be torturing terrorism suspects incarcerated on foreign soil have been incendiary issues across Europe in recent weeks.”

The Fall and Rise of Extraterritoriality

The opening decades of the twentieth century were a period of great change in international politics. The First World War led not only to a reallocation of territorial possessions—the empires of the great powers had reached their zeniths—but also to a reallocation of power in world politics. Leadership began to flow from Great Britain, the “weary titan,” to the comparatively wealthy and vibrant United States. The newly formed League of Nations sought to manage international conflict but, with the United States refusing to join, was soon overwhelmed by rising violence. Nations turned inward, no longer willing to pursue the economic interdependence of the late nineteenth century. In E. H. Carr’s famous words, a “twenty years’ crisis” began at the close of the “war to end all wars”; the crisis culminated in the onset of another, even deadlier, war in 1939. These were also decades of ferment at home. The Progressive movement was recasting American politics, while the voting franchise expanded. At the same time the federal government was becoming a much more significant force in American life. The role of the federal government had long been limited. What scholars call the administrative state was quite small until the early twentieth century. By the 1940s, by contrast, the federal government comprised a rich and powerful array of agencies and departments, many devoted to regulating economic and social relations. These regulatory agencies, and the laws they implemented, provided a new frontier in the development of norms and rules of territoriality. The onset of comprehensive national regulation had many causes. Industrialization, the nationalization of the economy, and the Depression and its associated political upheaval—all these and more contributed to a remarkable shift in the role of government. In a wave of lawmaking that began in the 1890s, and accelerated dramatically with the New Deal, the United States promulgated a myriad of new laws aimed at subjecting economic and social activity to government power. One of the first examples of this new genre of statutes was the Sherman Anti-Trust Act of 1890.

The Imperial Constitution

On May 9, 1880, on an American ship named the Bullion docked in the harbor of Yokohama, Japan, John Ross stabbed his crewmate Robert Kelly to death with a knife. As was the common practice at the time for Westerners who committed crimes in Asia, Ross did not face trial for murder before local Japanese authorities, nor did Japanese law influence the outcome of the case in any way. Rather, Ross’s trial was conducted by Thomas van Buren, the local American consul in Kanagawa, Japan. The trial occurred under consular jurisdiction (described in chapter 1 in this volume), a form of extraterritoriality that was commonly asserted in the past by European great powers in states they deemed “uncivilized.” Japan, though soon to join the ranks of the civilized nations, was at the time of Robert Kelly’s death compelled to afford the Western powers a free hand in adjudicating the crimes of their countrymen within Japan. The American consular court in Kanagawa convicted John Ross of murder and sentenced him to death. Although Ross was in fact British, the court held that because he was a seaman on a U.S. vessel he was subject to the jurisdiction of the United States. Ross’s death sentence was ultimately commuted to life imprisonment by President Rutherford B. Hayes. Apparently unsatisfied, in 1890 Ross brought a challenge to his murder conviction that rose to the Supreme Court. In the late nineteenth century the connections of American citizens to foreign places and foreign markets were rising rapidly. Extraterritorial jurisdiction was a European practice of long standing, but it became much more significant and extensive in the late nineteenth century. Ross’s case directly raised the question of the legality of such jurisdiction, not in terms of international law (that was generally unquestioned at the time), but in terms of domestic law. His case thus implicated the extraterritorial reach of constitutional rights at a time when imperialism was undergoing a major resurgence and the United States was assuming a more prominent place in international affairs than ever before.

The Long Arm of the Law

Rene Martin Verdugo-Urquidez was driving in San Felipe, Mexico on a winter’s day in 1986 when he was stopped by several Mexican police officers. The officers arrested Verdugo-Urquidez, placed him in the back of an unmarked car, and forced him to lie down on the seat with his face covered by a jacket. A Mexican citizen, Verdugo-Urquidez was believed to be one of the leading members of a major drug cartel and was suspected of participating in the brutal murder of Enrique Camarena-Salazar, an agent of the U.S. Drug Enforcement Agency (DEA). After a two-hour drive north the Mexican officers walked Verdugo-Urquidez to the international border, where he was transferred to U.S. Border Patrol agents. He was then brought to a federal detention center in San Diego. Working with the Mexican Federal Judicial Police, DEA agents based in Mexico searched Verdugo-Urquidez’s residences in Mexicali and San Felipe, where they found incriminating documents relating to drug trafficking. This seemingly smooth example of international police cooperation ran into a hurdle once Verdugo-Urquidez faced trial in the United States. His lawyers sought to suppress the evidence, arguing that it had been obtained without a warrant and in violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” The district court agreed, declaring that the Fourth Amendment applied to the search in Mexico. The court called the search a “joint venture” of the DEA and the Mexican police. Because the DEA had failed to obtain a warrant, and because the search was improperly handled, the district court held that the incriminating evidence had to be suppressed pursuant to what is usually called the “exclusionary rule.” The Reagan administration immediately appealed the ruling. Drug trafficking had become a major concern of the United States in the 1980s, and the DEA overseas activities at issue in the Verdugo-Urquidez case were an important front line in what was commonly termed the war on drugs. If the Constitution regulated searches and seizures outside the United States, the DEA and other agencies would have to revamp their approach to foreign criminal investigations.

Territory and the Republic

The American Revolution birthed a new nation that, although small and weak, would eventually come to dominate world politics. The events of 1776 foreshadowed a range of future rebellions by peoples who chafed under imperialism and sought ultimately to control their own political destiny. In North America, as in the many independence movements since, the rebels aimed to do so by claiming and defending a distinct territory and declaring themselves a new state. The American Revolution was unusual, however, in that the new United States did not simply occupy territory that had been previously ruled by an existing Westphalian sovereign. The United States was instead surrounded by a vast expanse of land largely ungoverned (in the view of Europeans) by any other political entity. The nation began as thirteen colonies on the Atlantic coast, but over the next two centuries it enlarged its territory dramatically through a combination of conquest, purchase, and treaty. This story is central to American history, and the “extraordinary geographic expansion of the United States is critical to understanding the rise of the nation as a world power and global empire.” This chapter explores how the concept of territoriality was manifested and interpreted in early American law. The founding generation “was intensely interested in the geographic extent of the American polity.” How was this intense interest manifested? In what ways were established ideas about Westphalian territoriality reflected in the new Constitution? What legal questions did geographic expansion raise? In short, this chapter explores how eighteenth- and early-nineteenth-century Americans understood and interpreted the links between sovereignty and soil. For several reasons the United States is particularly interesting in this regard. Federalism entails a central distinction between state and federal territory. For most of American history federal territory was substantial in size and, in large part due to conflicts over slavery, highly charged politically. How, if at all, constitutional protections differed in the states versus the territories was a question that would over time foment dramatic debate. The United States also contains many Indian tribes.

Territoriality in American Law

In 1899 the English writer Rudyard Kipling penned a poem entitled “The White Man’s Burden.” The phrase is now famous, though few probably know that Kipling was its author. Fewer still know the full title: “The White Man’s Burden: The United States and the Philippine Islands.” Kipling published the poem to implore the United States, which had just defeated Spain in a war, to assume control of Spain’s former colonies. By the end of the nineteenth century the United States had grown into an economic giant and had shown itself capable of vanquishing a once great European nation. Now, Kipling suggested, it was time to step into its natural role as an imperial power. His final verse made clear the stakes: . . . Take up the White Man’s burden— Have done with childish days— The lightly proferred laurel, The easy, ungrudged praise. Comes now, to search your manhood Through all the thankless years Cold, edged with dear-bought wisdom, The judgment of your peers! . . . Many Americans at the time agreed that victory in the Spanish-American War of 1898 demonstrated that the United States was now a world power of the first rank. Yet as the poem suggests, they were not entirely sure about ruling Spain’s former colonial islands. Even if the United States did follow the lead of other great powers and build an overseas empire, it was unclear exactly how its colonies should be governed. Were the islands acquired from Spain subject to the same laws as ordinary American territory, or could the United States rule offshore territories differently simply because they were offshore? In short, as contemporaries put the question, did the Constitution follow the flag? This debate consumed the American public and elites alike. It became a central theme in the 1900 presidential contest between Republican incumbent William McKinley and Democratic challenger William Jennings Bryan. The Democratic Party platform emphatically declared an anti-imperial stance: “We hold that the Constitution follows the flag, and denounce the doctrine that an Executive or Congress deriving their existence and their powers from the Constitution can exercise lawful authority beyond it or in violation of it . . . Imperialism abroad will lead quickly and inevitably to despotism at home.”