Trying Terrorists and the Principle of Protection

The always brilliant Philip Hamburger has an article in the last issue of the Columbia Law Review called “Beyond Protection” that deserves serious attention. It opens:

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly difficult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection. This Article explains the principle of protection and its implications for terrorism.

Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law. This was the principle on which early American law dealt with enemy aliens and other persons who did not owe allegiance, including those who today would be called “terrorists.” The principle of protection still provides a valuable model for understanding a wide range of otherwise intractable problems. At a doctrinal level, it resolves important questions about habeas, prisoners of war, the power of the executive over enemy aliens, the jurisdiction of courts over foreigners and foreign lands, and the rights of unauthorized aliens.

The principle also provides a framework for understanding more general difficulties, including the legal strategies available to the government, the domain of national law in a multinational world, and the means of reconciling safety and civil liberty. In these ways, as illustrated by terrorism, the principle of protection is an essential foundation for a society that seeks to preserve itself from danger without undermining its liberty.

And it concludes:

the law is subject to at least two limitations: that the coercion of the law, including habeas and other legal process, is confined to sovereign territory, and that the obligation and protection of the law are confined to persons within allegiance. These limitations on the law’s domain stand in sharp contrast to some contemporary visions of “extraterritoriality,” in which the law has so open-ended a reach as to have no clear boundary—let alone a border consistent with ideals of consent or the practicalities of how nations defend themselves and their diverse choices.

Perhaps one day, the diversity and conflict among nations will come to an end. In the meantime a line must be drawn somewhere, delimiting not only the physical borders of nations but also the outer edges of their laws. The principle of protection, joined by that of sovereign territory, does much to draw this line with a combination of idealism and practicability, generosity and prudence.

I’m still working my way through the long and interesting piece, but I’d be interested in others’ view of Hamburger’s argument.