“The Effective Anti-terrorism Law (ATL)
1) To effectively combat global terrorism, the U.S. President is hereby authorized to abduct to the United States any terrorist anywhere on earth.
2) The President shall have the power to enact legislation pursuant to this law.”
The U.S. President causes Mohammad al Rafid to be abducted from Somalia. Rafid is not a U.S. citizen. Rafid wishes to challenge his abduction as a violation of U.S. constitutional law. Can Rafid succesfully challenge the constitutionality of the ATL? Why or why not?
I. PROCEDURE
(A).
Issue: Whether Article 1 of the ATL is constitutional
Rule: The U.S. Constitution gives exclusive foreign policy power to the U.S. federal government. Moreover, the U.S. president is to conduct U.S. foreign policy, implementing congressional laws in an historically lawless area.<
Application: The facts given do not say whether the ATL was passed by a majority of the representatives and senators and then signed by the president, so I presume that it was. If the law was enacted legally and the object of the law is within the federal power and the role of the executive then the remaining question is whether international law limits the legislation of the United States. It does not. Although customary international law and ratified treaties are directly effective before U.S. courts, the U.S. constitution is regarded as superior to international law, in the U.S. legal system, and U.S. legislation may thus derogate from international law. However, where possible, international and U.S. law will be interpreted by U.S. courts as coherent, and not as in conflict.
Conclusion: I presume the law was passed by a majority of the congress and signed by the president. If that is the case, then: because the object of the law is within federal power and respects the separation of powers and because ordinary U.S. legislation is superior to any conflicting prior international law the ATL is constitutional.
(B):
Issue: Whether Article 2 of the ATL is constitutional
R: Although Article 1 is constitutional, the congress may not delegate legislative power to the executive.
A: Here, Article 2 purports to grant the president the power to make laws. That is a constitutionally prohibited delegation of legislative power to the executive and violates the principle of separation of powers.
C: Article 2 of the ATL is unconstitutional.
R: The constitutional doctrine of severability states that where the court can sever an unconstitutional portion of a law without thereby rendering the remainder of the law senseless the court shall limit its ruling of unconstitutionality to the unconstitutional portion of the law.
A. Here, the law may well still be implemented constitutionally without Article 2.
C. Thus, though Article 2 is unconstitutional, Article 1 is not thereby impaired and is still operative law.
II. SUBSTANCE
Rafid may claim his abduction violates his fundamental rights to due process or habeas corpus. Both claims would fail.
I. Due Process:
Issue: Rafid may claim a fundamental liberty interest not to be illegaly abducted and brought to trial.
Rule: The fundamental values of the U.S. constitutional hierarchy are life, liberty, and ownership of property. Application: Here, Rafid was forcibly abducted. Consequently it is clear that his liberty interest was infringed.
This raises the issue whether a non-citizen has constitutional rights. The better view is that the non-citizen enjoys fundamental rights consistent with their status as a non-citizen. The liberty of movement, the freedom from imprisonment is a fundamental right. Thus, Rafid has a fundamental right which he may seek to enforce. Rafid may thus claim the law violates his due process right, specifically his right to liberty. However, fundamental rights are not absolutes and are contextualized by other fundamental rights and state power. Conflicts between state power and fundamental rights are resolved through proportionality analysis. The legislation must be a rational means to a permissible end, which does not unduly infringe on fundamental rights. Here, the legislation seeks to protect public security from terrorism. The end of this law is clearly legitimate. The means chosen, authorizing executive abductions overseas are clearly a rational way to attain that end: abducting suspected terrorists has a general and specific deterrence effect. Although domestic abductions would likely be unconstitutional that is not the case here. The abduction overseas, especially of a non-citizen, would fall within the presidents unreviewable discretion as a political question. However, although this law is a rational means to a permissible end and thus meets proportionality in the broader sense, the law definitely infringes on a fundamental right. Where a law infringes on a fundamental right, it must use the least restrictive means to attain its end, it must be strictly necessary, and must serve a compelling state interest. Here, the law clearly serves a compelling state interest: physical security. Moreover, the law here uses a less restrictive means than assassination, aerial bombardment, or invasion. Finally, this law may be seen by the court as necessary, because there is no U.N. police or other instrument of international law enforcement.
Conclusion: This law does not violate Rafid’s due process rights, because the law is a rational means to a legitimate end, which serves a compelling state interest using the least restrictive means necessary to attain the legitimate end.
II. Habeas Corpus:
Rafid may also make a claim for habeas corpus, arguing that his abduction or detention be unlawful. As seen, his abduction was no violation of U.S. law. Presuming Rafid’s trial is fairly conducted, his irregular abduction and detention are not sufficient on their own to warrant release. Were Rafid detained for many years without charges he might argue that his right to a fair and prompt trial be violated. However that does not appear to be the case here.
Conclusion: Consequently, Rafid may request habeas corpus, but will not obtain release thereby.