Rights of foreigners in the "war on
by Jon Roland
The president and everyone involved in taking some of the actual or proposed
actions in the current "war on terrorism" are subject to criminal and
civil liability without the authority of a congressional declaration of war or
letters of marque and reprisal to define the "enemy". The president
is subject to impeachment. A congressional resolution of consent to
presidential actions does not meet the constitutional requirement.
The controversy over the hastily-passed "USA Patriot" Act echoes
that over the 1798 Alien Act, which pretended to grant to the president the
authority to deport or imprison foreign nationals he deemed
"dangerous". That Act and the 1798 Sedition Act were used in a
reign of terror against critics of the administration of president John Adams,
such as the editors and publishers of opposition newspapers.
Thomas Jefferson and James Madison led a response with such measures as the
Kentucky and Virginia Resolutions of 1798, the Kentucky Resolutions of
1799, and the Virginia Report of 1799. These efforts defined the
"Doctrine of '98" that led to the defeat of John Adams and election
of Thomas Jefferson in 1800 -- the "Revolution of 1800". After that
most accepted the position that the Alien and Sedition Acts were
But another Sedition Act was adopted in 1918, during WWI, making it a crime
to criticize the government or Constitution of the United States. This led to
the Red Scare and Palmer raids of 1919-20, and the persecution of critics under
the Sedition Act and the Espionage Act of 1917. More than 1500 were arrested
for disloyalty. Although most of them were eventually released, 245 were
deported to Russia. An amended version of the act remains in the code as 18 USC
2384 and 2385.
Lincoln had civilians tried in military courts during the 1861-65 War of
Secession, but the Supreme Court held, in Ex Parte Milligan 71 U.S. 2 (1866):
"The Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times, and under all circumstances. No doctrine,
involving more pernicious consequences, was ever invented by the wit of man
than that any of its provisions can be suspended during any of the great
exigencies of government."
The issue of when persons on U.S. territory could be tried by military
courts was tested in the Supreme Court in Ex Parte Quirin, 317 U.S. 1
(1942), which upheld military prosecution of seven Germans who had entered
U.S. territory covertly, six of whom were executed. At the time there was a
congressionally declared state of war with Germany, defining them as
"enemies". However, the Supreme Court took the case on a writ of
habeas corpus, which established that such persons do at least have that due
process right if the offense occurred on U.S. territory. Otherwise there would
be no protection against such a military tribunal prosecuting U.S. citizens or
The issue of extended detention of persons of foreign descent was decided in
Korematsu v. U.S., 323 U.S. 214 (1944), which affirmed the conviction of a
Japanese-American citizen who resisted detention, although he was later found
not guilty at the district court level. This case is now generally considered
an embarrassment for U.S. case law, although it has not been overturned.
Criminal prosecution in civilian courts of persons who committed offenses
against the U.S. from outside U.S. territorial limits would be
unconstitutional, despite several cases that claim extra-territorial criminal
jurisdiction. They would also be extremely difficult to prove.
U.S. v. Burr, 8 U.S. (4 Cranch) 469 (1807) established that the location
of a criminal offense is where the offender was at the time of the offense, not
where the effects of the offense occur. The Constitution limits criminal
jurisdiction to a court in the state and district where the offense was
U.S. v. Hudson, 7 Cranch 32 (1812) established that persons may only be
criminally prosecuted under statutes in effect on the territory where the
offense was committed, which excludes offenses committed outside U.S.
When the offenders are not acting for a foreign state, a declaration of war
is not applicable. That leaves only military action under letters of marque and
reprisal as a constitutional remedy.
The full constitutional due process protections apply on U.S. territory to
citizens and legal residents or visitors, provided they did not gain legal
entry by fraud. That does not mean such foreigners don't have full rights of
life, liberty, and property, but due process may be truncated, provided
authority for doing so is conferred by Congress, by either a declaration of war
or letters of marque and reprisal. That authority is needed for such actions as
trial of prisoners by a military tribunal, or putting bounties on the heads of
suspects. In the absence of such authority, only defensive actions may be
taken, without violating the law, represented by 18 USC 2441, which applies to
everyone involved, including the president.
 See Joseph Story, Commentaries on the Constitution, Book 3, Ch. 27,
§ 1288-9, http://www.constitution.org/js/js_327.htm
. Also see Edward S. Stimson, Conflict of Criminal Laws, 1936, at
 The term "marque" refers to the authority to pass beyond the
frontiers ("marches"). "Reprisal" refers to warlike actions
such as search, seizure or destruction of persons or property. "Letters of
marque and reprisal" are warrants to take such actions which would
otherwise subject all persons involved to civil and criminal liability. They
may be issued to private parties, and should be restricted as to the persons or
types and amounts of property to be destroyed or seized, and their disposition.
A "declaration of war" is a general authorization, normally without
restrictions other than the usual "laws of war". Both measures need
to specify the "enemy" and conditions under which they terminate, such as a peace treaty.