So here's the draft intro section
Being serious now. What do you think? Does it draw you in?
People, Places and Races: From the Peace of Westphalia to the NSA
(via the Philippines)
Why does the U.S. Government “spy on foreigners” but not its own “people” (except when it does), and why is this different in Europe (or is it)? If the U.S. Constitution doesn’t travel overseas, then why does it protect overseas Americans? Does the U.S. Constitution apply to “the people” of the United States, the Government of the United States, the territorial boundaries of the United States, or some muddled combination thereof? These are questions currently vexing at least four separate areas of advocacy and scholarship.
First, there are those seeking to reverse a series of “racist” early 20th Century Supreme Court decisions known as the Insular Cases. The Insular Cases continue to limit the applicability of Constitutional rights with regard to residents of U.S. territories the United States acquired following the Spanish-American War of 1898, including, at the time, the Philippines.[1] Second, some of the same advocacy organizations are deeply concerned about the dangers of inadvertent domestic electronic surveillance posed by the National Security Agency (NSA),[2] apparently having long since accepted that foreign-focused intelligence-gathering is beyond the scope of U.S. Constitutional protection. A third group of primarily European privacy advocates objects instead to the very fact that the NSA distinguishes between foreign and domestic targeting, protecting only the United States’ own “people” and disregarding the fundamental human rights of others.[3] This fact appears to be a foregone conclusion as the result of the 1990 U.S. Supreme Court case United States v. Verdugo-Urquidez,[4] which held—based on the Insular Cases—that the Fourth Amendment does not apply to U.S. Government searches of most non-U.S. nationals conducted overseas, essentially a constitutional carte blanche for the NSA.[5] Finally, because Verdugo-Urquidez is a muddled plurality opinion with an indecipherable test for who has “substantial connections” with the United States sufficient to qualify for Fourth Amendment protections, yet a fourth group of legal practitioners are simply trying to figure out how to apply the test in coherent fashion, primarily in criminal cases in which a defendant is seeking to invoke the Exclusionary Rule. [6]
In order to answer these questions, this article explains how the United States came to have a national security state with global reach but Constitutional rights that seem to stop at the U.S. border (except with regards to its own “people,” of course); as Secretary of War Elihu Root once put it, “a Constitution that follows the flag…but doesn’t quite catch up with it.” This bifurcation between what Native American scholar Maggie Blackhawk calls the “external” and the “internal” Constitutions[7] far pre-dates the Insular Cases, and in fact, was set into motion with the Louisiana Purchase of 1803. It reflects a contradictory American desire to create a government of limited power with respect to its own people, while at the same time being able to project unlimited power externally vis-à-vis the great powers of Europe. Europe had purportedly created a system of international relations in the 1648 Peace of Westphalia that stood for equality among nations and respect for their territorial sovereignty, no matter how great or small, which the United States greatly coveted. But the “Westphalian nation-state system” was itself also contradictory, in that it was always intended to be limited to Christian “civilized” nations, with dire ramifications for Native Americans and African slaves, among others. This double contradiction is one that must be thoroughly unpacked in order to begin to make sense of a case like Verdugo-Urquidez.
We must unpack, as well, the United States’ own unique history of racism, of which the Insular Cases were simply a few among many instances throughout U.S. history in which the U.S. Supreme Court or other U.S. leaders have “said the quiet parts out loud.” While much of white Americans’ ideas about superior and inferior races were English or Western European in origin and largely tracked with one another during the 19th century, the United States also had “a history that gave a particularly fervent and unique quality to the arguments of special racial destiny and accentuated the rate at which a racial explanation of world power was accepted.”[8] By the mid-19th century, white Americans were so fixated on the superiority of the supposed Anglo-Saxon race that the United States, unlike its European counterparts, consciously avoided acquiring any territories that were “too densely occupied by ‘alien’ races that could not be assimilated into the country.”[9] Then, suddenly, the United States acquired the Philippines, and new tools and doctrines were in order—starting with the Insular Cases.
It is the contention of this article that the muddled mess that is Verdugo-Urquidez is the reflection of a continued erroneous assumption about the inherent superiority of people versus places, that has guided Western thinking since at least 1500 and that is deeply embedded in U.S. law. The overtly expressed racism of the Insular Cases may make Justice Gorsuch uncomfortable,[10] but, to paraphrase the line from “Brokeback Mountain,” there is a reason we just don’t know how to quit them.[11] The Insular Cases drew upon the notorious 1857 U.S. Supreme Court Dredd Scott decision for inspiration, which in turn relied upon beliefs about who was and was not considered a “person” by the framers of the U.S. Constitution. Those Founding Fathers had brought these beliefs with them from England, which had jostled with France and Spain to lay claim to territory in the Americas based on shared European assumptions about whether the existing Native occupants had any meaningful claim to the land.
This article unwinds this long history in four major parts as follows: Part One discusses the origins of the underlying concepts of Verdugo-Urquidez; i.e., how the Bill of Rights of the U.S. Constitution has come to be applied to both people and places, restricted to the linear boundaries of the United States and yet also attached to U.S. person wherever in the world they go. First it contains a brief discussion, based largely on Jared Diamond’s seminal work Guns, Germs, and Steel, of the biological reasons for the lopsided outcome of the Western colonial encounter that began in 1492, and how Europeans came to precisely the wrong conclusion about what accounted for their stunning success, which I call the Erroneous Assumption. Second, it shows the dilemma posed by colonial acquisition was at the origin of the Westphalian nation-state system in the Peace of Westphalia of 1648, and was in fact the genesis of the idea that sovereignty aligns with linearly bounded spaces, such that what NSA does today on one side of a national boundary is legal and, mere inches on the other side, illegal. Third, it explains how the United States developed its own early legal theories, largely to solve its quandary about Native Americans and Mexicans sitting on desirable land, about how it could project its power externally while still being limited by the Constitution internally. Fourth, it covers the European imperialist origins of asserting extraterritorial jurisdiction over one’s own nationals in foreign territory as a means of informal empire-building that stopped short of territorial acquisition, a practice that the United States enthusiastically adopted and to which it much later applied constitutional protections.
Part Two explains how the U.S. acquisition and occupation of the Philippines following the Spanish-American War of 1898 not only raised constitutional issues that then were resolved in problematic fashion in the Insular Cases, but also gave rise to the U.S. national security state itself, leveraging the Filipino people as a sort of surveillance innovation lab before bringing many of those innovations not only across the world, but eventually, back home.
Part Three examines the historical and factual context of Verdugo-Urquidez, i.e., the rise of transborder narcotrafficking, culminating in the 1985 torture-murder of DEA agent Enrique “Kiki” Camerena, and explains its muddled reasoning in light of this long and troubled history of each of its conceptual component parts. It also looks at the post-1990 impact of Verdugo-Urquidez on global surveillance of Internet-based communications by the NSA, as it is fair to say that this is where it has had the greatest impact. The DEA’s ability to conduct warrantless searches of drug traffickers overseas without Fourth Amendment implications has not, as it turns out, enabled the United States to finally achieve victory in the war on drugs.
Finally, the article discusses how the Fourth Amendment, the Constitution, and the United States’ assertion of global power via surveillance could be reconceptualized, if the Erroneous Assumption were uprooted from U.S. legal doctrine once and for all.
[1] On August 22, 2023, a coalition of civil rights organizations asking the President of the United States to “publicly condemn” the Insular Cases. Chief among the concerns of the letter’s co-signers was the status of Puerto Rico, which the letter asserted has been subject to a “racist and undemocratic colonial relationship” for 125 years following its acquisition from Spain, along with Guam and the Philippines, by the treaty that ended the Spanish-American War, the 1898 Treaty of Paris. Cuban independence was guaranteed in the treaty, although the United States acquired rights to Guantanamo Bay. The United States occupied and governed the Philippines, its largest overseas colony, from 1899 to 1946, before granting its independence; accordingly, the Insular Cases, though largely shaped by the U.S. colonial experience in the Philippines, no longer have direct ramifications for Filipinos. Justice Gorsuch recently opined in a concurrence that the cases “have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” United States v. Vaello Madero, 596 U.S. __ (2022)(Justice Gorsuch, concurring). However, American Samoa, a U.S. territory acquired in 1899 through a Tripartite Convention between the United States, United Kingdom and Germany, is still impacted by the Insular Cases. An effort by American Samoans to secure a U.S. Supreme Court reversal of the Insular Cases in order to recognize Samoans’ birthright U.S. citizenship under the 14th Amendment failed in 2022 when the Supreme Court declined to take up the matter. The Supreme Court denied certiorari in a cluster of related cases, one of which was Fitisemanu v. United States, Docket No. 21-1394, denied October 17, 2022; opinion of the 10th Circuit.
[2] Signals intelligence is intelligence derived from electronic signals and systems used by foreign targets, which includes, most significantly for members of the public, communications systems. See “Signals Intelligence (SIGINT) Overview,” National Security Agency website at https://www.nsa.gov/Signals-Intelligence/Overview/ (viewed July 21, 2024).
[3] On October 7, 2022, President Biden enacted Executive Order 14086, Enhancing Safeguards for United States Signals Intelligence Activities, in an effort to assuage European sensitivities and preserve the free flow of commercial information between the U.S. and European Union (EU), by extending certain safeguards on the collection and use of personally identifiable information (PII) in signals intelligence collection by the U.S. to non-U.S. persons (specifically, EU citizens). In general, the privacy/personal data protections promulgated by European bodies such as the EU and the Council of Europe do not draw distinctions based upon the nationality of the data subject. See, e.g., Council of Europe Convention 108; European Union General Data Protection Regulation.
[4] 494 U.S. 259 (1990). The Court held in its plurality opinion that the Fourth Amendment in its entirety did not apply to a search conducted overseas because Verdugo-Urquidez, lacking a “substantial connection” to the United States (aside from his drug smuggling operation), was not one of “the people” envisioned in the Fourth Amendment’s reference to "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” 494 U.S. at 265, 271-72.
[5] Specifically, Verdugo-Urquidez noted that the Insular Cases, “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.” [GET PAGE CITE]. Only one legal scholar has traced the path of the Insular Cases from Downes v. Bidwell (1901) to Boumediene v. Bush (2006), regarding the detention of individuals at Guantanamo Bay, Cuba; see Pedro A. Malavet, The Inconvenience of a “Constitution [that] follows the flag … but doesn't quite catch up with it”: From Downes v. Bidwell to Boumediene v. Bush, 80 Miss. L.J. 181 (2010), available at http://scholarship.law.ufl.edu/facultypub/311.
[6] See, Alan Mygatt-Tauber, Rethinking the Reasoning of Verdugo-Urquidez, Indiana Journal of Law and Social Equality, Vol. 8 issue 2, Article 2, at 248 (“The Ninth Circuit, for example, found that being a student at an American university, even if outside the United States at the time of the challenge, established substantial connections. On the other hand, the Northern District of California determined that a man with twelve years of residency, marriage to a resident alien, a four-year-old American citizen child, a California driver’s license, payment of traffic tickets, ten years living in California communities, and payment of sales taxes established familial ties, but not substantial connections with the United States”).
[7] Maggie Blackhawk, Foreword: The Constitution of American Colonialism, The Supreme Court 2022 Term, 137 Harv. L. Rev. 1, 19 (2023).
[8] Reginald Horsman, “Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism,” in Critical White Studies: Looking Behind the Mirror, Richard Delgado and Jean Stefancic, eds. (Temple University Press, 1997), at 140.
[9] Eric T.L. Love, Race Over Empire: Racism and US Imperialism (University of North Carolina Press, 2004), at 23.
[10] See supra note 2.
[11] The U.S. Supreme Court has been trying to “quit” the Insular Cases, since at least 1957, when it opined in Reid v. Covert, 354 U.S. 1 (1957), that “it is our judgment that neither the cases nor their reasoning should be given any further expansion.” 354 U.S. at 14.