Due process is regarded as a fundamental right articulated the Fifth Amendment. Yet, controversy exists as to who, where, and under what circumstances, this right exists.

Modern, mainstream interpretation of the Fifth Amendment holds that it does not apply to aliens outside of U.S. jurisdiction. However, Nathan S. Chapman at the University of Georgia School of Law argues this isn’t the case. In an essay titled “Due Process Abroad,” he makes the case that the founding fathers intended for the amendment to extend to non-Americans outside the U.S. accused of violating U.S. laws under peacetime conditions. Furthermore, he frames this right as a key grievance the colonists had against England just prior to the War for Independence. And one they still had on their minds as they wrote the Bill of Rights.

“Outside the context of war, no one believed that a federal officer could deprive a suspect of life, liberty, or property without due process of law — even if the capture occurred abroad or the suspect was a non-citizen,” Chapman writes.

The findings could have significant implications for modern court cases involving aliens accused of violating U.S. laws though outside of U.S. territory.

“Do citizens and aliens enjoy due process protections when detained and interrogated by U.S. officers abroad?” Chapman asks. “What should a federal court do when a defendant demands the same access the prosecutor enjoys to evidence located abroad?”

The Fifth Amendment reads in part as follow:

“no person … shall be deprived of life, liberty, or property without due process of law.”

“On its face, the provision applies to any governmental deprivation of life, liberty, or property, by any government agent, against any one and anywhere,” Chapman writes.

Much of his case rests on the historical legal treatment of pirates within the context of English law. Starting with the reign of Henry VIII, men accused of engaging in privacy on the high seas were tried by common law through a combination of a grand jury and jury trial.

At the time, it was extremely difficult to legally separate pirates from privateers. These sailors acted on behalf of their nation’s government via a commission. To punish privateers through extrajudicial means would be to imply a state of a war between nations that were technically at peace.

Chapman writes:

What if the defendant had been acting under the orders of another sovereign? Given the legal and diplomatic implications, this is something the prosecuting nation would want to know. First, the authorizing sovereign had committed an act of war. The victim’s sovereign’s rights and duties of war had been triggered. Second, as a consequence, the defendant was a prisoner of war, not a criminal, and as such entitled to the protections of the law of war. Executing the defendant as a pirate could violate the law of war and complicate diplomatic efforts.

Such were the dynamics of piracy and prize in the early modern era.

This common law tradition carried on until the time right before the American Revolution, when the British transferred authority over privacy to the vice-admiralty court, fearful that American jurors would engage in jury nullification.

“The use of vice-admiralty courts in America, for cases that would require a jury trial in England, became one of the colonists’ most persistent complaints,” Chapman writes. “Americans thus were eager to return to the English practice, providing for the trial by jury of all crimes, even those committed on the high seas…the Constitution’s text and structure suggests that there were no territorial or political exceptions to due process limits on law enforcement.”

He writes further:

Congress never attempted to follow Parliament’s lead by authorizing the trial of pirates by an extraordinary legal process. Throughout the early years of the federal republic, the U.S. commitment to due process for pirates, wherever in the world they were apprehended, stood in stark contrast to the British approach of trying them by the closest possible vice-admiralty court without the protections of a common law trial. The difference was the U.S. Constitution’s separation of powers and requirement of due process of law.

At the same time, Chapman explains that due process for non-Americans overseas as a right enjoyed only during peacetime. It did not and does not apply when the United States is in a state of war with a nation.

For example, although James Madison spoke out against the Alien Friend Act for violating the due process of non-Americans, he “nevertheless acknowledged that alien enemies—subjects of a nation with which the United States was in fact at war—were not entitled to the full protection of U.S. municipal (or domestic) law,” Chapman writes.

Most Americans today assume the provisions of the Bill of Rights, specifically the Fifth Amendment, only apply to citizens. Chapman forcefully dismantles this narrow interpretation.

TJ Martinell

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