Kent on Piracy, the Law of Nations and Due Process

Andrew Kent, Fordham University School of Law, has posted Piracy, the Law of Nations, and the Limits of Due Process, which is forthcoming in the Michigan Journal of International Law 39 (2018)

This Article engages the long-running debate about the geographical and contextual scope of U.S. constitutional protections. There is agreement that both citizens and noncitizens enjoy largely equal rights when present within the United States, and that when they venture abroad, U.S. citizens carry most of their constitutional rights with them. But beyond that, there are many disputes. Do noncitizens have any constitutional protection from the U.S. government when it acts against them outside U.S. borders? Does it matter whether the location is the ungoverned high seas or the sovereign territory of another nation? Does the context matter? Is law enforcement different from military force? Does it matter whether the subject is an internationally-recognized sovereign versus a non-state actor?

Scholars have tried to bring the original understanding of the Constitution to bear on these questions, with some hoping to show that individual rights were understood to be global and universal. A vision of extraterritorial constitutional rights for all has most recently been offered by Professor Nathan Chapman, in an article entitled Due Process Abroad, addressing the legal framework for English and American governmental efforts to suppress piracy. Chapman argues that, outside the context of state-to-state warfare, due process required that anyone, anywhere, suspected of violating criminal or civil anti-piracy statutes could only be proceeded against by judicial process, rather than military force.

I conclude that Chapman's historical arguments for global due process are unsupported and unsound. By first examining piracy suppression in the law of nations, English domestic law, and English government practice in the centuries leading up to American independence, and then American law and government practice during the Founding and antebellum periods, I conclude that pirates on the high seas were viewed as outside the protection of domestic and international law and thus could lawfully be subject to summary violence. Although both England and the early United States did frequently use the criminal justice system to address piracy, due process did not require that approach. The extensive use of law enforcement methods (with its attendant procedural protections) was driven by a mix of factors, sounding in international law, government policy, and a concern for fair treatment. These considerations, rather than a misplaced theory about the original meaning of the Constitution, should be at the center of our debates about counterterrorism and other extraterritorial security efforts today, as they were in our predecessors' approach to piracy.