03 April 2009

Follows the Flag

One hundred years ago, a startling debate was raging in the United States about whether the constitution "followed the flag" when the United States acquired new territory. This had never been a problem because until 1898, all territories acquired by the United States were either uninhabited, inhabited by white people or inhabited by Indians who were seen as a dying race. These territories were always seen as, one day, being incorporated into the United States as a state. However, when the U.S. bought Spain out of its possessions and claims to possession, there was no intention of having Guam, the Philippines, Puerto Rico or Cuba ever stepping on the path to statehood. With the taking of Hawai'i the same year, there was ambiguity over its incorporation -- especially since the government was controlled by whites.

This dilemma created a series of case law known as the Insular Cases in which the business friendly U.S. Supreme Court determined that control or possession by the U.S. government or its armed forces did not mean that when they operated outside of the "incorporated territory" of the Union, they were subject to the limitations and enumerations of the U.S. constitution. Yes, a highly peculiar decision since such organs of the U.S. government draw their life solely from the document. Hawai'i was incorporated, Philippines, Puerto Rico, Samoa, were not. The decision lay with the U.S. Congress over incorporation.

This incorporation doctrine was used in the 1950s to prosecute a U.S. civilian spouse of a soldier under a military court martial as opposed to jury trial for murder. The U.S. Supreme Court indicated that the "territorial incorporation doctrine" and its consequences were inapplicable to U.S. government's dealing with U.S. citizens (at least in this instance) and the woman was returned to the U.S. to stand for trial by jury.

Another legal footnote was that Germans landed spies in the U.S. to engage in domestic terrorism. Although they looked and sounded like every other white person on the East Coast, they were discovered and executed as "enemy combatants." They were not prisoners of war because they were engaging in terrorism which is always stateless (and only states can be at war with one another) and did not have uniforms on engaging in the "proper conduct of combat" -- unlawful combatants.

The territorial-incorporation doctrine became a strange academic curiosity in legal scholarship until the U.S. War on Everyone started on October 7, 2001. Suddenly, U.S. government lawyers had crafted an apparent legal blackhole in which Muslim prisoners of war were dumped into -- dumped into an unincorporated remnant of the Spanish-American War of 1898. As has been extensively written about, the U.S. Supreme Court has repeatedly rejected the deprivation of any access to U.S. due process by the Executive and Legislative branches.

However, the U.S. government apparently has also been holding people in detention in its control in Afghanistan itself for at least the last six years. U.S. District Court Judge John Bates ruled today that prisoners in U.S. custody abroad do have the right to petition for the Writ of Habeaus Corpus (for the time being, at least if they are being held in a country other than their country of citizenship). A stunning victory for due process advocates across the world and the rule of law. A stunning blow to the Insular Cases and the so-called Doctrine of Territorial Incorporation.


  1. i swear.. nowadays you kinda wish countries had labels. you don't even know who's the real terrorist anymore.

    nice and very well written. i feel smarter already. haha

  2. i am beginning to think that each person is their own terrorist.