“The trial of the Bashi-Bazouks : the court of the first day." Printed on border: "Ikiades (Greek), Sadoullah Effendi (president of the court), Selim Effendi, Wassa EffendiPashko Vasa (a Christian Albanian), Mr. Baring's dragoman, Mr. Walter Baring, Jovantcho (a Bulgarian), Counsel for the prisoner, Pertev Effendi, The prisoner. Written on border: "J. 6, 1877." (Wikimedia Commons)
D. Extraterritorial jurisdiction: Our people, their (?) places
Territorial acquisition had followed a different trajectory among the European empires for at least the first half of the 19th century. The wave of revolutions against Spain that rocked the Americas starting in 1811 had hollowed out the Spanish Empire by 1824 and left it with only a scattered handful of remaining island colonies, chief among them Cuba, Puerto Rico, and the Philippines.[1] The protracted military conflicts between Spain and its former colonies also taught other European empires a valuable lesson: direct rule of colonies was expensive. While the British Empire pressed ahead with various forms of colonial occupation in India under the auspices of the East India Company (EIC), elsewhere, the British, French and multiple other imperial powers eschewed military conquest.
Instead, they pioneered the assertion of extraterritorial jurisdiction over their own nationals in foreign territory, resolving both criminal and civil matters in special “consular courts,” as a less formal and cumbersome means of establishing dominance.[2] By the middle of the 19th century, the United States would enthusiastically embrace this innovation and continue its use in lucrative markets like East Asia, long after the European empires began to resume the practice of direct colonial possession and rule in the mid- to late 19th century. From this practice eventually emerged the notion that, while U.S. Constitutional rights typically stop at the U.S. border, they also travel with U.S. citizens overseas.
The English were the earliest adopters of the practice, dating back to 1541-43, when Parliament passed two acts allowing murder and treason to be tried by a special English commission where such crimes occurred outside the realm. In 1803, the United Kingdom extended that jurisdiction to include accessory to murder and manslaughter. [3] The British leveraged these laws heavily in their imperial ventures, initially to simply reign in the conduct of some of their own nationals across island trading posts like Tahiti, whose pork exports helped the British feed the convict colony in New South Wales. The British helped island chiefs who were their trading partners maintain security against escaped convicts and other British “flotsam” in the islands. Unfortunately,
[t]hat flotsam had its own ideas about island order. Escaped convicts, whalers, sealers, castaways, adventurers, and, increasingly, traders seeking valuable commodities like trepang (sea cucumbers), sandalwood, and pears drifted in and out of island communities seeking to trade and live by rules of their choosing. Interlopers transformed island geopolitics, enriching and empowering some island elites at the expense of others…”[4]
The problem was that the island monarchs, not being of a particularly “Westphalian” mindset, often claimed “authority” over other islands in order to monopolize access to lucrative European trade, “but they did not and often could not control the internal politics or external aggressions of their putative subjects.”[5] The British addressed this problem with the creation of colonial admiralty courts in 1817, which could try cases brought against Britons “on land” in either the Pacific Islands or Honduras.[6]
The British and French then discovered that extraterritorial jurisdiction could be a phenomenally useful tool in dealing with the Ottoman Empire. The Ottomans, who had long regulated their various religious subjects in a pluralistic manner via their sovereign governing body the Sublime Porte, had issued a set of “Capitulations” to various Christian nations dating back to the 1500s, conferring rights and privileges on European subjects who resided or traded in its territory. By the 19th century, the once-dominant Ottoman Empire was in decline, and the Western powers gradually began to leverage the Capitulations into an assertion of jurisdiction via consular courts that effectively insulated their nationals from Ottoman legal control. In 1825, the British abolished the Levant Company that had been chartered by Queen Elizabeth I in 1592, absorbing the company’s consular service and asserting British legal authority directly over British citizens.[7] Lacking an explicit legal authority to do so, in 1843, Britain passed the first Foreign Jurisdiction Act, which authorized the British government to exercise legal authority in the Ottoman Empire “in the same and in as amply a manner as if Her Majesty had acquired that jurisdiction by the cessation or conquest of territory.”[8] The French were asserting themselves similarly in Egypt, where French merchants who had long benefitted from the Capitulations now came under the close supervision of the French consular bureaucracy, thereby serving as “the agents and sometimes profiteers of French informal rule.”[9] While the Sublime Porte strenuously and continuously objected,
Western states demanded legal institutionalization in the Ottoman Empire/Turkey as a condition for the abolition of extraterritoriality. This demand was consistent with the precepts of positive law. In addition, state clarification and enforcement of property rights became increasingly important as the Ottoman economy integrated into the world capitalist system. The protection of Western merchants’ legal and commercial rights as guaranteed by extraterritoriality was vital for this economic integration…Western states would abolish this system only when they were assured that a new system would safeguard Western business interests in the empire while increasing Western merchants’ access to Ottoman markets.[10]
The Ottoman Empire struggled throughout most of the 19th century to institutionalize state law. Pursuant to the Imperial Edit of 1839, the Empire made some progress in creating legal codes, state courts, and a legal hierarchy. However, “State, religious, and communal law continued to overlap” with new “codes” that were little more than “collections of vague precepts” and “not specific enough to adequately clarify legal and property rights” (to Western expectations).[11] The Ottoman Empire never succeeded in meeting the Western powers’ stringent conditions for adequate legal reform before collapsing as an empire and transitioning into a Turkish nation-state after World War I. The European powers did not relinquish jurisdiction over their nationals in Turkey until 1923.[12]
Similar practices took hold in China, where, in 1757, the Qing emperor decreed that Guangzhou (Canton) would be the only port in China open to trade with foreigners. In 1784, a gunner on board the private ship the Lady Hughes, lying near Guangzhou, fired a naval cannon in salute on orders from his superior, despite the gunner having pointed out to his superior that a small Chinese boat was lying alongside the ship; two of the three Chinese nationals on the boat eventually died as a result of the cannon discharge.[13] Under either Chinese or English law at the time, the gunner could have been held criminally liable and potentially sentenced to death, with his superior additionally held liable.[14] The EIC seemed well aware of this, and in fact in 1754, had respected Chinese criminal law enough that it requested Chinese prosecution of a French national who had murdered a British sailor in Guangzhou, believing that the French offender would never be convicted in French court for a crime committed in China.[15]
Nonetheless, in the Lady Hughes incident the EIC unilaterally proclaimed the gunner “innocent”; obstructed Chinese officials’ attempts to investigate the crime and arrest the gunner; claimed the gunner had “absconded” despite contemporaneous evidence that he had remained hidden on the Lady Hughes the entire time;[16] enlisted the support of the French, Dutch, Danish, and American representatives in Canton in an armed show of force that alarmed Chinese officials;[17] then, finally surrendered the gunner to Chinese authorities, only to express outrage and betrayal when the gunner was sentenced to death by strangulation.[18] The EIC successfully portrayed the incident to the Western world as evidence that “Chinese law and legal institutions were so unjust, arbitrary, and barbarous that Western governments had to protect their citizens from Chinese jurisdiction.”[19]
The British were also illegally importing opium from India into China on such a large scale, causing widespread addiction, that tensions eventually escalated in the first of two Opium Wars between Britain and China (1839-1842), after Chinese officials dumped a large shipment of opium into the harbor.[20] After the first Opium War, China was forced to accept the Treaty of Nanjing (1842) aboard a British battleship poised to attack Nanjing, and a year later, the Treaty of the Bogue, the first in a series of what today are called the “unequal treaties” between European and East Asian powers, guaranteeing Europeans market access. In the Treaty of the Bogue (also known as the Treaty of Hoomunchai),[21] China had to grant Britain extraterritorial jurisdiction to British nationals, who were now allowed to reside in any of five ports. For China, this represented the beginning of “a long and painful struggle for its territorial sovereignty” that did not end until 1943.[22]
In the beginning of the 19th century, the United States appears to have recognized and respected China’s Westphalian sovereignty, in sharp contrast to Britain. In 1815, for example, the American consul in Guangzhou communicated to his British counterpart that U.S. citizens conducting business in the city had been “regulated by a strict regard and respect for the laws and usages of this Empire, as well as the general law of nations.”[23] In 1821, when an American sailor was accused of killing a Chinese woman on board an American ship, the Chinese government sentenced him to death by strangling, without protest from the U.S. State Department.[24] In 1840, then-U.S. Congressman Caleb Cushing had proudly declared on the House floor that “the Americans in Canton, and they almost quite alone, have manifested a proper respect for the laws and public rights of the Chinese Empire, in honorable contrast with the outrageous conduct of the English there.”[25] With regard to the British illegal opium trade, most American merchants recognized that China had a “perfect right to regulate her imports” and, indeed,
with confiscated British opium being flushed into the Canton harbor, it was difficult not to view the event as a kind of Canton Opium Party, analogous to the Boston Tea Party: these were two heroic acts of struggle against British imperial regulation of trade, in China and America, respectively.[26]
Nonetheless, shortly after the British obtained extraterritorial jurisdiction over its nationals in the Treaty of Nanjing, President John Tyler sent Caleb Cushing, now the first American minister to China, to negotiate trade concessions comparable to what the British had obtained.[27] Once in China, Cushing apparently had a dramatic change of heart from his remarks made in 1840, far exceeding his mandate in obtaining extraterritorial jurisdiction for U.S. citizens in what became the 1844 Treaty of Wanghia.[28] He went on to become the Attorney General of the United States, where he played a key role in interpreting the meaning of the treaty’s extraterritoriality clause.[29] When asked later about his earlier remarks from 1840, he made no effort to deny the inconsistency, stating simply, “I do not admit as my equals either the red man of America, or the yellow man of Asia, or the black man of Africa.”[30]
The U.S. Congress implemented the Treaty of Wanghia through the Consular Courts Act of 1848,[31] granting judicial authority to U.S. consuls in those ports to try both civil and criminal cases, up to and including imposition of the death penalty, in both China and the Ottoman Empire.[32] It was only a few years afterwards that U.S. Commodore Matthew Perry, a veteran of the Mexican-American War, arrived with four warships in the harbor at Tokyo Bay, having been sent by President Millard Fillmore in 1851, ostensibly to return shipwrecked Japanese sailors and request that Americans stranded in Japan be returned to the United States. Perry returned in the spring of 1854 with a larger squadron and convinced the Japanese, begrudgingly, to sign the Treaty of Kanagawa, which guaranteed “most favored nation” status to the United States, ensuring that whatever other concessions Japan extended to the European powers would also be granted to the United States.[33] In 1858, Townsend Harris, the first U.S. consul to Japan, concluded the Harris Treaty providing, inter alia, that “Americans committing offenses against Japanese shall be tried in American consular courts, and when found guilty shall he punished according to American law.”[34] American extraterritorial rights in China were then reaffirmed in a new treaty in 1858,[35] and a second law passed by Congress in 1860 “to carry into effect provisions of the treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries.”[36]
The Harris Treaty was just one of many agreements signed between Japan and Western powers in 1858 that “set the legal basis for the start of extraterritorial life” in five Japanese treaty ports.[37] Indeed, the European powers had perceived the arrival of Commodore Perry in 1853 as a sign of Japanese vulnerability[38] and moved in quickly. Yokohama became the “prime centre of consular courts,” in which Western powers often relied on one another for judicial support, so preferable was any Western adjudicative process to that of the Japanese.[39] By 1878, American Tokyo-based journalist Edward House ridiculed the extent of extraterritorial jurisdiction being exercised: “Belgians, Danes, Russians, Spaniards, Peruvians (!), Portuguese, Hawaiians (!!), Italians, Swiss, and now even Chinese are all amenable to the laws of their own countries.”[40] France even established Asia-based consular courts of appeals in Pondicherry, India, and in Saigon.[41]
American trading house in Yokohama, 1861.
The U.S. consular court system initially offered little to U.S. litigants and criminal defendants over the supposedly “heathen” and “barbaric” legal systems of China and Japan. The first set of regulations for the U.S. consular courts in China were written in 1849 by a U.S. physician.[42] President Abraham Lincoln conveyed to Congress in 1860 that “the judicial consular establishment there [in China] has become very difficult and onerous.”[43] Among the many problems with carrying out a criminal justice program in this manner was that the consuls had no jails,[44] although at least this did not pose a hindrance to carrying out summary death sentences. In many instances, the consular “court” was simply the local U.S. consul, sometimes a grossly unqualified and/or corrupt individual who gained the position via political appointment and would carry out serious miscarriages of justice while personally enriching himself by charging fees.[45]
The new California Supreme Court, established in the wake of the Mexican-American War, was highly dubious that consular jurisdiction over Americans was constitutional in light of Dredd Scott. In the 1859 case Forbes v. Scannell,[46] the court observed:
It is direct legislation by Congress upon the rights of property and persons of American citizens by a power derived from China. It is a delegation, moreover, of legislative power to an executive officer, holding his place at the will of the President, and a union in his hands of powers executive, legislative, and judicial. It subjects American citizens, in their persons and property, to laws which they have no voice in making; it holds them to answer for capital or infamous crimes, without the presentment or indictment of a grand jury, and to liability to be deprived of life, liberty, or property, without due process of law, and without trial by jury…
The reasoning of the Supreme Court of the United States in the Dred Scott Case…disclaims this power in the General Government over American citizens, not merely in the States and Territories, but wherever they may be found.
This absolute power cannot be maintained under the clause which makes treaties the supreme law of the land, because no foreign power, by treaty, can give to our government more power over American citizens than the Constitution allows it to receive, hold, and exercise.[47]
If the theory behind U.S. consular courts’ constitutionality was that China had indeed given the Congress and Executive Branches power by treaty that they did not otherwise possess, this theory was then undercut by the U.S. Supreme Court in Chae Chan Ping v. United States,[48] in which a Chinese national challenged the validity of the Chinese Exclusion Act on the grounds that it violated the 1868 iteration of the U.S.-China Treaty, which provided in part as follows:
Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation, and reciprocally, Chinese subjects visiting or residing in the United shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation.[49]
The U.S. Supreme Court found that the 1868 treaty in no way invalidated the Chinese Exclusion Act of 1882 (as amended in 1888), even though the latter quite explicitly violated the above treaty provision:
By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.[50]
In this instance, the Court found, Congress had been compelled to enact the Chinese Exclusion Act, despite U.S. treaty obligations, because
[i]n December, 1878, the convention which framed the present Constitution of California, being in session, took this subject up and memorialized Congress upon it, setting forth in substance that the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; …that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions, and praying Congress to take measures to prevent their further immigration. This memorial was presented to Congress in February, 1879.[51]
By 1872, the United States had treaties providing for consular functions with 38 sovereign entities, with four of them providing for jurisdiction over criminal offenses.[52] Eventually, U.S. citizens overseas began questioning the constitutionality of these arrangements as well; specifically, of their being tried and convicted by U.S. consular courts without the full panoply of constitutional rights that were normally extended to criminal defendants at home. On May 9, 1880, John M. Ross, a member of the crew of the private American ship Bullion, stabbed the ship’s second mate to death on the deck of the ship as it sat anchored in the harbor of Yokohama. The master of the ship arrested him, placed him in irons and took him ashore to be tried by the local U.S. consular court, which convicted him of murder and sentenced him to death. Ross then successfully applied for clemency to President Rutherford B. Hayes, who commuted his death sentence on the condition that he be imprisoned at hard labor in Albany, New York, for the rest of his life.[53] A decade later, Ross filed a writ of habeas corpus challenging his continuing imprisonment, arguing that he had been denied his constitutional right to trial by jury.
The U.S. Supreme Court was unsympathetic, this time grounding the U.S. power to continue to detain him solely in the U.S. treaty with Japan, as opposed to the U.S. Constitution:
By the constitution a government is ordained and established “for the United States of America,” and not for countries outside of their limits. The guaranties it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States…The constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree; the laws of neither one being obligatory upon the other…The framers of the constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guaranties in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guaranties of the constitution against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and some times accompanied with extreme cruelty and torture.[54]
The 1891 in re Ross decision was then eventually reversed by the 1956 decision Reid v. Covert,[55] in which two U.S. military wives had each been convicted of killing their husbands, in England and Japan, respectively, by U.S. military court-martial. Courts-martial historically have never provided for a jury trial, which are otherwise guaranteed to civilian defendants under the 6th Amendment to the Constitution, and under the Uniform Code of Military Justice (UCMJ) enacted by Congress in 1950, they still do not.[56] But between 1891 and 1956 there had been several other major developments. First, Japan had successfully ended the exercise of Western extraterritorial jurisdiction in its territory via the “unequal treaties” by the end of 1899 following the success of the Meiji Restoration at enacting apparently acceptable legal reform.[57] Second, Japan had become an imperial power in its own right,[58] ultimately culminating in the acts of territorial aggression throughout East Asia that led to a clash with the United States, the surprise attack on Pearl Harbor, and World War II.
Third, in its unconditional surrender to the United States and subsequent long-term military occupation, Japan was forced to accept[59] the absolute immunity of U.S. military servicemembers from criminal jurisdiction, who instead were subject to the UCMJ. In September 1955, for example, local Okinawans found the raped and mutilated body of 5-year-old Yumiko Nagayama in a landfill adjoining the U.S. air base at Kadena. Following a joint investigation between the U.S. military and local Ryukyu police, U.S. Sergeant Isaac B. Hurt was court-martialed by U.S. forces in Okinawa and sentenced to death amid widespread local public demonstrations. He was then, however, quietly returned to the United States, after which several U.S. senators, including Senate Majority Leader Lyndon B. Johnson, successfully lobbied President Eisenhower to commute his sentence to 45 years.[60]
“Native women workers load cement bags onto a platform during construction of a sewage disposal drain at Naha Air Base, Okinawa.” U.S. Air Force image, June 13, 1953.
What the U.S. Supreme Court could not abide was the extension of U.S. military jurisdiction over civilian American military wives. In Reid v. Covert, each of the wives had been convicted by court-martial overseas pursuant to UCMJ Article 2(11), which at the time asserted military jurisdiction over all persons “accompanying the armed forces without the continental limits of the United States.” The Supreme Court upheld Article 2(11) in Kinsella v. Kreuger,[61] the case in which Mrs. Dorothy Krueger Smith had murdered her husband in Japan, finding that in re Ross as well as a number of the Insular Cases had established “beyond question that the Constitution does not require trial before an Article III court in a foreign country for offenses committed there by an American citizen, and that Congress may establish legislative courts for this purpose.”[62] Justice Felix Frankfurter, ever the iconoclast, joined the majority opinion in affirming Mrs. Smith’s life sentence but filed a separate “reservation” in which he savaged the majority opinion for failing to “support the constitutional basis upon which the Covert and Smith courts-martial were instituted and the convictions were secured,”[63] adding,
the Court sustains the convictions by two lines of argument that obviously have nothing whatever to do with the regulation of the Armed Forces of the United States. The court relies on In re Ross…a case that represents, historically and juridically, an episode of the dead past about as unrelated to the world of today as the one-hoss shay is to the latest jet airplane. In complete disregard of the political and legal sources purporting to render women like Mrs. Smith and Mrs. Covert amenable to military courts-martial for crimes committed abroad, the Court draws upon the system of capitulations whereby Western countries, including the United States, compelled powerless Eastern and Asiatic nations to surrender their authority over conduct within their confines by citizens of these Western nations to the rule of Western ‘consular courts.’[64]
On the same date, the Supreme Court initially upheld Mrs. Clarice Covert’s conviction and sentence for murder in England as well, based on the Kinsella ruling.[65] The court then granted a rehearing in November 1956, consolidated the two cases, and reversed Mrs. Covert’s conviction, reversing in re Ross as well and holding Article 2(11) of the UCMJ unconstitutional as applied to civilians. In doing so, the majority seemingly embraced the Dredd Scott theory of U.S. Governmental power, observing that “[t]he United States is entirely a creature of the Constitution,” “[i]ts power and authority have no other source,” and that “it can only act in accordance with all the limitations imposed by the Constitution,”[66] without any explanation of what sort of authority had empowered the United States to re-write Japan’s constitution and impose extraterritorial jurisdiction as part of a seven-year-long military occupation. In the same breath, however, it made clear that what it was referring to was the United States’ inability to act “free of the Bill of Rights” when taking action against U.S. citizens.[67] As it further explained,
When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later, an English historian wrote:
“In a Settled Colony, the inhabitants have all the rights of Englishman. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown…But, on the other hand, they take with them all the rights and liberties of British subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country.”[68]
The Court made no effort to reconcile this explanation with its historic reliance on Westphalian concepts of territorial sovereignty, which, as noted above, supposedly represented a complete and dramatic transition in 1648 from “King of the English” to “King of England,” and away from ancient Roman forms of legal pluralism that imposed different legal regimes on foreigners than on Roman citizens like the Apostle Paul.
Because Article III, Section 2 of the Constitution and the Fifth and Sixth Amendments provided certain protections for civilians facing criminal charges—the Fifth Amendment with specific regard to capital offenses—any trial of U.S. civilians in a capital case that was not based on a presentment or indictment of a Grand Jury and also provided for trial by jury could not pass constitutional muster.[69] Since the more limited court-martial procedure set forth in the UCMJ was only constitutional if in furtherance of Congress’ power in Art. 1, Section 8, clause 14 to “make Rules for the Government and Regulation of the land and naval Forces,” of which civilian wives were not a part, it was not constitutional as applied to either Mrs. Covert or Mrs. Smith, who certainly would not have been court-martialed as members of the “land and naval Forces” had they committed their murders on a military base in the United States.[70] As for whether the United States’ bilateral agreements with the United Kingdom and Japan provided an independent basis for U.S. military jurisdiction over civilians, this notion was rejected, notwithstanding Article VI, the Supremacy Clause of the Constitution, because “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”[71]
By this reasoning, In re Ross, which had held that the Fifth and Sixth Amendments did not apply abroad, could no longer stand. The Court observed that “[t]he consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the ‘non-Christian’ countries to which the statutes applied.”[72] It added that the general Ross “approach,” that the Constitution simply has “no applicability abroad,”
is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad. Thus, the Ross case rested, at least in substantial part, on a fundamental misconception, and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans. We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era.[73]
As for the Insular Cases, the Court in 1956 already seemed somewhat uncomfortable with them but found them inapplicable to the situation faced by Mrs. Smith and Mrs. Covert, as they pertained only to “territories which had only recently been conquered or acquired by the United States” and “had entirely different cultures and customs from those in this country.”[74] Justice Frankfurter, in his separate concurrence, simply noted that the Insular Cases “did not lay down a broad principle that the protective provisions of the Constitution do not apply outside the continental limits of the United States,”[75] but rather, were a practical solution to unique circumstances, applicable only when the United States “from time to time acquired lands in which many of our laws and customs found an uncongenial soil because they ill accorded with the history and habits of their people.”[76] Frankfurter helpfully quoted directly from one of the Insular Cases, which had opined,
If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends…it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work in justice and provoke disturbance, rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice.[77]
It was only via this long and convoluted path from the 16th-Century Ottoman Capitulations to Reid v. Covert that the U.S. Supreme Court arrived at a conceptualization of constitutional rights that were limited in the Westphalian sense to the territorial boundaries of the United States, and yet also attached like a barnacle to U.S. citizens travelling or residing overseas. After Reid, the consular courts were gone, in re Ross was gone, UCMJ jurisdiction over civilians was gone, but the U.S. Bill of Rights remained. Reid is an important part of the Verdugo-Urquidez decision and is a large part of why the NSA cannot “target” U.S. persons even when it collects signals intelligence overseas.
While Reid dealt primarily with the Fifth and Sixth Amendments, it would eventually have tremendous ramifications, alongside the Insular Cases, for the First and Fourth Amendments. In order to examine how this came to pass, we must first examine how these two Amendments came to be applied alongside the growth of the U.S. national security state itself. This is what brings us to the Insular Cases and the Philippines.
[1] Josep M. Fradera, “Cuba, Puerto Rico, the Philippines, and the Crisis of the Great Empire,” in Comparing the Legacies of Spanish Colonialism in Cuba, Puerto Rico, and the Philippines, Hans-Jürgen Burchardt, Johanna Leinius, eds., University of Michigan Press, 2022, at 47.
[2] A sovereign exercising general consular functions has a long history dating back to the Roman Empire, and is mentioned in Vattel’s The Law of Nations. However, the function historically was restricted to arbitrating disputes between the merchants of one’s own country. Vattel writes,
Among the modern institutions for the advantage of commerce, one of the most useful is that of consuls, or persons residing in the large trading cities, and especially the sea-ports of foreign countries, with a commission to watch over the rights and privileges of their nation and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission, and as the state which allows of this commerce must naturally favor it, for the same reason also it must admit the consul. But there being no absolute and perfect obligation to this, the nation that wishes to have a consul must procure this right by the commercial treaty itself…
And though the importance of the consular functions be not so great as to procure to the consul’s person the inviolability and absolute independence enjoyed by public ministers, yet, being under the particular protection of the sovereign who employs him and intrusted with the care of his concerns, if he commits any crime, the respect due to his master that he should be sent home to be punished.
Vattel, the Law of Nations, PAGE CITE.
[3] Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850, Harvard University Press (2016), at 154-55.
[4] Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850, Harvard University Press (2016), at 153.
[5] Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850, Harvard University Press (2016), at 155-56
[6] Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850, Harvard University Press (2016), at 154-55.
[7] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 43.
[8] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 44.
[10] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 114. On the difference between positive law and natural law, see supra note CITE.
[11] This period is called the Tanzimat or Reorganization Period in Turkish/Ottoman history. Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 115.
[12] In the Lausanne Treaty signed July 24, 1923, European powers agreed to abolish extraterritoriality in return for “judicial reforms, foreign judicial advisers, and foreign courts’ jurisdiction over foreigners on issues of personal status.” Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 145.
[13] Li Chen, Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the “Lady Hughes” Controversy in 1784, 27 Law and History Review No. 1 (Spring 2009), at 11.
[14] Li Chen, at 12-15. Chen additionally notes that in 1810,
English criminal justice had come under severe criticism for the hundreds of capital punishments still authorized by the “Bloody Code” and for the arbitrariness in English jury verdict and judicial sentencing. A number of English legal reformers, together with other European intellectuals, were deeply impressed with the fact that China had a comprehensive law code for millenia stipulating punishmetns in proportion to minutely defined offenses.
[17] Li Chen, at 20. Chen notes that the local Chinese governor, in an attempt to cool down tensions,
invited one representative from each of the Western nations except the British to his office. Through an interpreter, the governor first “[set] forth the power of the Emperor” and “his own determination to support the laws.” After expressing his surprise as the voluntary involvement of these non-British agents, he then assured them that he meant no harm to them and that “all that he wanted was to have the Man delivered to him” by the British. According to him, the gunner should be turned in within three days, would have “an impartial examination” in his tribunal, and would be “released unhurt” if found innocent. The governor then offered to drop the issue of Western armed ships coming up to Canton and promised to resume the trade once the foreign representatives sent the ships back to Whampoa. During the meeting, the governor offered the foreign visitors tea and then “presented each gentleman with two pieces of silk, in token of amity” before they left.
[20] Teemu Ruskola, Canton is not Boston: The Invention of American Imperial Sovereignty, American Quarterly, Vol. 57, No. 3, Sept. 2005, pp. 859-884, at 868.
[21] See Li Zaiquan, The Reform of the Legal System in the Late Qing, Journal of Modern Chinese History, Vol. 16, No. 1 (2022), 50-70, at 51.
[22] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 149.
[23] Dennett, Americans in East Asia, at 85, quoted in Teemu Ruskola, Canton is not Boston: The Invention of American Imperial Sovereignty, American Quarterly, Vol. 57, No. 3, September 2005, pp. 859-884.
[27] This mission was legitimized by an Act of Congress. See Act March, 1843, c. 90, 5 Stat. 624.
[28] Article XXI of the Treaty provided that “Subjects of China who may be guilty of any criminal acts towards citizens of the United States, shall be arrested and punished by the Chinese authorities according to the laws of China: and citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the Consul, or other public functionary of the United States, thereto authorized according to the laws of the United States.” Article XXIV provided for shared jurisdiction between American consular officials and the Chinese government in civil conflicts between Americans and Chinese: “[I]f controversies arise between citizens of the United States and subjects in China, which cannot be amicably settled otherwise, the same shall be examined and decided comformably to justice and equity by the public officers of the two nations acting in conjunction.” Article XXV excluded China from jurisdiction in conflicts between Americans and between Americans and non-Chinese. Text available in Treaties and Other International Agreements of the United States of America, Vol. 7, pp. 647-658; and in American Diplomatic and Public Papers: The United States and China, Series I: The Treaty System and the Taiping Rebellion, 1842-1860, Vol. 2 (Wilmington, Delaware: Scholarly Resources, Inc., 1973), 124-125. The treaty and Cushing’s negotiation of it are also discussed in Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889), at 590.
[32] The United States was slightly less successful asserting jurisdiction over its nationals in the Ottoman Empire. An 1830 treaty between the United States and the Ottoman Empire, which granted the United States most favored nation status relative to other European powers, was the subject of dispute into the 1880s. See, e.g., Tevfik Pasha, Imperial Ottoman Legation, to Mr. Freylinghuysen, Washington, April 26, 1884, No. 678, Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 8, 1885, pp. 890-91, available at https://history.state.gov/historicaldocuments/frus1885/d678 (viewed September 4, 2024):
The Imperial Ottoman legation has repeatedly been under the necessity of making representations to the Department of State in relation to the jurisdiction which is assumed by the United States consuls in Turkey over American citizens who have been guilty of crimes or misdemeanors committed within the territory of the Empire, to the exclusion of all intervention on the part of the Ottoman authorities, and that not only in cases in which the injured party is a foreign subject, but also in those in which such party is an Ottoman subject.
The Sublime Porte has always opposed this view of the United States, which is based upon an erroneous translation of Article IV of the treaty of 1830.
[34] Otherwise known as the Treaty between the United States and the Empire of Japan, signed at Yedo July 29, 1858, at articles VIII and IX. Quoted in DeB. Randoph Keim, Examination on accounts of consular officers of the United States, exec doc. No 317, 42nd Congr. 2nd Session, 27 May 1872 (hereinafter “Keim Report”), available at file:///Users/laraballard/Downloads/SERIALSET-01520_00_00-033-0317-0000.pdf (viewed September 4, 2024), at 250-51. The Harris Treaty was preceded by a treaty of June 17, 1857, executed by the consul general of the United States and the governors of Simoda, which first conceded to the American consul in Japan authority to try Americans committing offenses in that country; this was then superseded by the Harris Treaty. In re Ross, 140 U.S. 453, 466 (1891).
[35] The Treaty between the United States of America and the Empire of China, signed at Tien-Tsin, June 18, 1858, see in particular Articles XI and XXXII, quoted in Keim Report, at 250-51.
[36] Statutes at Large, vol. XII, page 72, cited and summarized in Keim Report, at 41-43.
[37] Harald Fuess, “Unequal treaties, consular jurisdiction, and treaty port society,” in Routledge Handbook of Modern Japanese History, Sven Saaler and Christopher W.A. Spilzman, eds. (1st ed., Routledge: 2017), 47-61, at 48.
[38] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 73.
[39] “For example, the Imperial German government sometimes took care of Swiss affairs, or the judge of the ‘Danish Court’ could be either the German or the English consul.” Fuess, “Unequal treaties,” at 50.
[40] Edward House, Tokio Times, 11 November 1878, quoted in Fuess, “Unequal treaties, at 51.
[42] Consular Courts of the United States of America in China (written by physician John W. Davis), January 2, 1849, ADPP, Series I, Vol. 8, 81-90, 183-189.
[43] Compilation of the Messages and Papers of the Presidents, 1789-1897, 53d Congr. 2d Sess 1907, House Miscellaneous Document no. 210 (Washington, DC: Government Printing Office, 1907), 7:3446.
[44] Congress, Senate, Executive Doc. No. 36-43, 36th Congr., 1st sess. (1860)(commenting on lack of prison space).
In the race for consular appointments the practice of low intrigue and too often the application of every species of trickery and misrepresentation, has in the very outset a deleterious influence, and where consular offices are demanded as the reward of political services, efficiency or suitability must be a secondary consideration.
Keim Report, at 19. By the time senior Treasury official DeB. Randolph Keim out on a worldwide investigative tour of U.S. consulates in 1878, there were numerous reports of U.S. consuls pocketing consular fees, including those designated for destitute seamen; maintaining “questionable jail accounts” in Japan; carrying out serious miscarriages of justice and abuses of power in both civil and criminal proceedings; selling “vice consul” offices to Egyptian nationals in Egypt; and in Tumbez, Peru, a historic site of the once-great Incan empire before it was conquered by Pizarro, simply being an “utterly hopeless inebriate.” Id. at 19, 66, 69, 83, 94, and generally Parts II and VI. Keim observed, “If all could be told of the consular service of the United States, as illustrated in the conduct of its officials, the excess of bad over good would be so great that the most cold and indifferent citizen would blush for the name of his country.” Id. at 184.
The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts. This subject was fully considered by Mr. Justice Curtis, while sitting at the circuit, in Taylor v. Morton, 2 Curtis 454, 459, and he held that while it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative of which no nation could be deprived without deeply affecting its independence; but whether a treaty with a foreign sovereign had been violated by him, whether the consideration of a particular stipulation of a treaty had been voluntarily withdrawn by one party so as to no longer be obligatory upon the other, and whether the views and acts of a foreign sovereign, manifested through his representative, had given just occasion to the political departments of our government to withhold tax execution of a promise contained in a treaty or to act in direct contravention of such promise were not judicial questions; that the power to determine them has not been confided to the judiciary, which has no suitable means to execute it, but to the executive and legislative departments of the government, and that it belongs to diplomacy and legislation, and not to the administration of existing laws.
[56] The subjection of uniformed U.S. military servicemembers to the UCMJ and hence, a separate form of criminal justice than that to which civilians are entitled under the U.S. Bill of Rights, is grounded in Article 1, section 8, Clause 14 of the Constitution, which empowers Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces." Long before the UCMJ harmonized the systems of military justice that had historically been applied separately to the Army and Navy, the Supreme Court found in Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857), that this power includes the ability to try military servicemembers by court-martial, with some ability of civilian courts to review the decisions of courts-martial but generally only when they have exceeded their jurisdictional mandate relative to civilian judicial authority. Modern courts-martial convened under the UCMJ contain many procedural protections that correspond to U.S. civilian procedure—the Military Rules of Evidence (MREs) correspond more or less directly to the Federal Rules of Evidence (FREs), and the accused receive free defense counsel from Judge Advocate General (JAG) attorneys as a matter of course—but fact-finding is conducted by “court members” rather than juries, which would otherwise violate the 6th Amendment to the U.S. Constitution. The National Institute of Military Justice (NIMJ), in collaboration with the American Bar Association, produced two comprehensive reports on the UCMJ in 2001 and 2009, both known as the “Cox Commission Reports,” that provide an extensive overview of how military criminal procedure compares to civilian trials. See Report on the 50th Anniversary of the Uniform Code of Military Justice (May 2001); Report of the Commission on Military Justice (2009); both available at https://www.nimj.org/reports.html#/ (viewed September 17, 2024). The U.S. Supreme Court has also ruled that other core Constitutional protections such as the First Amendment require a “different [and more limited] application” due to the “different character of the military community and of the military mission.” Parker v. Levy, 417 U.S. 733, at 758 (1974)(court-martial conviction upheld under UCMJ Articles 133 (conduct unbecoming an officer) and 134 (general article prohibiting "all disorders and neglects to the prejudice of good order and discipline in the armed forces”), where an Army physician had made public statements urging African-American enlisted men to refuse to obey orders to go to Vietnam and referring to Special Forces personnel as "liars and thieves," "killers of peasants," and "murderers of women and children.").
[57] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), 66-68.
[58] This process started with its victory over China in 1895 and against Russia in 1904, which earned Japan the respect of Britain in particular. See generally Kayaoglu, supra, at 76-78, and Richard Connaughton, The War of the Rising Sun and Tumbling Bear: A Military History of the Russo-Japanese War 1904-5 (T.J. Press, London, 1991).
[59] The UCMJ applies in any overseas territory where such jurisdiction had been authorized by "any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law." 50 U.S.C. § 552. In England, the relevant “treaty or agreement” is the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (SOFA) of 1951, the only reciprocal SOFA in the world to which the U.S. is a party (text at https://www.nato.int/cps/en/natohq/official_texts_17265.htm; viewed September 17, 2024). The United Kingdom codified its obligations to NATO forces stationed on its territory in the Visiting Forces Act of 1952. See Louisa Brooke-Holland, “U.S. Forces in the UK: Legal Agreements,” House of Commons Library Standard Note SN06808, last updated 8 January 2015 (available at https://researchbriefings.files.parliament.uk/documents/SN06808/SN06808.pdf; viewed September 17, 2024).
The purpose of a SOFA is to define the status of military forces in friendly states, a practice that evolved out of a mutual agreement between Belgium and France when they were allied against the Germans in World War I and wished to enforce their own military discipline against their own forces while stationed in one another’s territory.
[I]t has been a longstanding United States policy to seek broad relief from local jurisdiction through the mechanism of a SOFA. The purpose is not to immunize the service member from criminal sanctions, but to apply military discipline which takes into account status, custom, and military needs.
The purpose of a SOFA is to share the sovereign prerogative between the sending and the receiving state. It is intended to strike a balance between the rights and obligations of each commensurate with the interests and needs of all parties to the agreement.
The history of the SOFA between the U.S. and Japan is very different. In Kinsella v. Krueger, 351 U.S. 470 (1956), the case that preceded Reid v. Covert before the two cases were consolidated and reheard, the U.S. Supreme Court could only point at that time to an “administrative agreement” between the U.S. and Japan that provided, inter alia, that
Pending the coming into force with respect to the United States of the [NATO SOFA agreement of 1951], the United States service courts and authorities shall have the right to exercise within Japan exclusive jurisdiction over all offenses which may be committed in Japan by members of the United States armed forces, the civilian component, and their dependents, excluding their dependents who have only Japanese nationality. Such jurisdiction may in any case be waived by the United States.
350 U.S. at 481 (Footnote 1; the court decision also references a citation to this agreement at 3 U.S.T. (Part 3)3354; it does not appear to be a treaty on which the Senate would have given its advice and consent). This “administrative agreement” governed U.S. forces in Japan closely following a time period when U.S. General Douglas MacArthur had served as the Supreme Commander for the Allied Powers (SCAP) in Japan (prior to his summary dismissal by President Truman in April 1951), and the SCAP’s mission, as per Assistant U.S. Secretary of State Dean Acheson, was nothing less than to carry out the “demilitarization and democratization” of Japan. John W. Dower, Embracing Defeat: Japan in the Wake of World War II (W.W. Norton and Company, 1999), at 77. “MacArthur’s devoted aide Courtney Whitney, a lawyer who had been his personal attorney before the war…exercised decisive influence in supervising the purges, policies regarding the emperor and the imperial institution, revision of the constitution, and all matters pertaining to the cabinet, Diet, electoral system, courts, and civil service.” Id. at 209-10. Meanwhile,
[t]he several thousand Americans trained in Japanese language and culture during the war in anticipation of being assigned to military-government duties often found themselves sent elsewhere than Japan. MacArthur and his staff did not want them. Of those who actually made it there, some were shunted off to Okinawa—an American exile to the gulag, where U.S. policy eschewed reform and focused instead on turning the war-savaged archipelago into an impregnable military base.
Id. at 224.
The new national charter—initiated by [MacArthur’s Allied General headquarters, known as GHQ] in February 1946 and promulgated nine months later, after extensive public and parliamentary discussion…not only codified the basic ideals of ‘democratization,’ but wedded them to ‘demilitarization’ by explicitly prohibiting Japan from resorting to war as a means of resolving international disputes. The imperial army and navy had already been demobilized, the military establishment already abolished. Under the ‘renunciation of war’ provisions in the new constitution’s preamble, as well as in its Article 9, the country formally committed itself to a pacifist course. This was a stunning innovation, enacted at General MacArthur’s initiative, but at the same time entirely consistent with the objectives set forth in the basic [U.S.] policy directives.
Id. at 82-83. During the constitutional ratification process in the Japanese Diet,
acknowledging the draft constitution’s genesis in [GHQ] was taboo…GHQ kept a close eye on these deliberations from behind the scenes and made clear at various junctures that basic principles [including the renunciation of the right of belligerency]…were, much like the emperor under the Meiji Constitution, sacred and inviolable.
Id. at 385. While the Japanese House of Representatives was allowed to make minor changes, the final wording of the Constitution’s Article 9 provided that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.” Id. at 395. The Constitution went into effect on May 3, 1947, a Japanese brass band marking the occasion by playing The Stars and Stripes Forever in front of the imperial palace. Id. at 401.
The U.S. military occupation continued until Japanese sovereignty had been officially restored at 10:30 p.m. on April 28, 1952. By then, Japan, the United States and 47 other nations had signed the 1951 Treaty of Peace with Japan, on which the U.S. Senate then refused to provide its advice and consent unless Japan agreed to sign a parallel treaty with Taiwan and
beyond this, adhere to the rigorous American policy of isolating and economically containing the People’s Republic of China. This shocked Japanese businessmen and economic planners, who had taken the China market for granted…The U.S.-Japan security treaty and a related “administrative agreement” that accompanied it also turned out to be more inequitable than any other bilateral arrangement the United States entered into in the postwar period. The Americans retained exceptional extraterritorial rights, and the number of military installations they demanded was far in excess of what anyone had anticipated. Hanson Baldwin, the oracular military commentator for the New York Times, accurately pronounced this the inauguration of “a period when Japan is free, yet not free.”
[70] 354 U.S. at 18-20. The Court additionally noted, in light of Revolutionary history, that “the Founders had no intention to permit the trial of civilians in military courts.” Id. at 30 (citing Ex parte Milligan, 4 Wall. 2).
[71] 354 U.S. at 16. Article VI of the Constitution, the Supremacy Clause, provides that “all Treaties made or which shall be made under the Authority of the United States, shall be the supreme Law of the Land.” The Court observed that
the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
