The Bill of Rights Abroad:
The Federal Circuit just held that the Takings Clause generally doesn't apply to takings of foreign property owned by foreign citizens who have no connection to the U.S. In the process, the court of appeals also canvassed the precedents on the broader question, which can also involve the Fourth Amendment, the criminal procedure provisions, and other Bill of Rights clauses.
Much worth reading, and should be pretty readable even to nonlawyers. Thanks to How Appealing for the pointer.
If the U.S. government told the Iraqis, "so long as we're occupying, you're all Christians now," it seems to me that ought to be a violation of the First Amendment, even though the only people affected would be Iraqis in Iraq, because the actor is the U.S. government and the purpose of the Bill of Rights is to contrain the U.S. government. Under the line of cases cited by the Federal Circuit, I'm not sure it would be. (I suppose non-Christian Americans might have standing to sue on the grounds that their tax dollars were being used to establish religion, but that's a separate issue.)
The problem I see is with standing requirements. The limitations on the government are meaningless unless there is some recourse when the government oversteps those limits. If Iraqis don't have standing to sue, and no citizen or organization has standing to sue on their behalf, then the limitation is meaningless with regard to non-citizens.
Under a social contract theory, one might argue that the limitations on government action only apply to actions effecting citizens, since citizens are the other party to the social contract. Under that theory, however, there is no relationship between our government and foreigners, who have ceded no power to our government. Governments should only be able to assert themselves over foreign citizens in their own countries to the extent required by the national defense, and as allowed by treaty.
I agree that buying the property would have been the right move and that taking advantage of the abusiveness of a foreign government is not right -- but it's not unconstitutional.
I suppose the error creeps in because geographical sovereignty is so readily confused with government, and because for so long, the U.S. government did relatively little outside its own borders.
I hope not, although I thought the decision was correct in light of Supreme Court precedent (and that such precedent seems within the range of plausible approaches the Court could take),
Prior to the events that are the subject of her claim, she was the sole owner of a cafeteria located on property next to the U.S. Embassy in Tashkent. The property on which her cafeteria was located was owned by the Republic of Uzbekistan, but Ms. Atamirzayeva owned the buildings on the property.
Ms. Atamirzayeva alleges that in December 1999 officials at the U.S. Embassy made a verbal demand to local authorities in Tashkent that they destroy Ms. Atamirzayeva’s cafeteria in order to increase the security of the U.S. Embassy. The following day, local authorities forcibly expelled Ms. Atamirzayeva from her cafeteria, then destroyed it while officials from the U.S. Embassy oversaw the demolition.
Are you seriously suggesting that the US has no moral obligation to compensate Atamirzayeva? Call it a taking, or not. The woman's property was destroyed at the behest of the US.
The fact that we knew that we could probably get the Uzbek government to destroy the property of one of its citizens and proceeded to ask them to do so is embarrassing. Think of the good will we could have fostered with the Uzbek people by buying out the cafeteria at a reasonable price. We probably could have done so for less than the cost of the lawsuits and appeals!
Lior, that's a distinction without a difference. If I'm stalking you, and you get a restraining order against me, and I then hire someone to stalk you on my behalf, the fact that I didn't actually do it myself is of little consequence.
Completely agree with byomtov, by the way, that a government with one shred of decency would have compensated this woman without making her sue. What kind of moral midgets do we have running things in Washington anyway. (Don't tell me, I don't want to know, it was a rhetorical question.)
At some point, you'd think the US government would attempt to save itself money by common sense but hey, it's not their money, right?
To everybody else, you're all assuming a lot of facts not in evidence. We have only the woman's allegations and characterization of what happened. Perhaps we did offer to buy the place, and she refused to sell. Perhaps she had turned the place into a terrorists' haven right next door to us. Perhaps we asked (rather than "demanded") the Uzbek government whether something could be done to improve security, given the risks of the open-to-the-public restaurant right next door, and they got over-zealous, something which we have no control over. Heck, for all we know, our treaty with the Uzbeks required them to keep other buildings at least 100 feet from our embassy, and they were in breach of the treaty.
As for the folks saying "why didn't they just pay her even if not legally required to," when a government official spends YOUR tax dollars in a manner not authorized or required by law, most folks generally take that as at least presumptive evidence of malfeasance at best, and corruption at worst. How many of you have complained mightily about government waste in doling out dollars to the victims of Katrina and other hurricanes? Or the unaccounted for funds spent in Iraq reconstruction projects?
I'm usually right with you, but I've got to go "abroad" here. It's true the document constrains a government, not a physical entity, but a government and its actions are tied to territory. That's why there's such a thing as "extraterritorial waters" over which a distinct government has no powers. And that's why the Constitution doesn't constrain our government outside its territory; that's the province of treaties and international relations.
Stalkers hire subcontractors?
Lior is right, Uzbekistan took her property. If her cafteria had been within the U.S. embassy it would have been a more interesting case.
Think of it like a ground lease.
What I was addressing is the question for the court, which is not whether the US was morally obligated to compensate the woman. The question is whether the US is legally obligated to compensate the woman under the takings clause.
Here, the answer should be a pretty clear no. Unfortunately the court complicates reasoning too much. The Constitution only serves to limit the actions of the US government (and, to a certain extent, the states). In particular, the court should have simply said that what happened here is not a "taking" for 5th amendment purposes since the US government did not directly take anything. Does the 4th amendment protect foreigners from their governments when the US gave the intelligence leading to their arrest?
Not so much as they used to be, I'm thinking, but it's certainly an arguable point; the courts sometimes prefer that the line be bright rather than right.
Suppose that U.S. employees had beaten the woman up, or detained her for a week, and she figured that she'd get nowhere in her country's own courts -- would she have a cause of action here?
On similar lines, the Federal Circuit's holding is interesting for what it suggests about victims of extraordinary rendition who seek to sue in U.S. courts. Shipping someone to Egypt to be tortured is a bit like having the local gov't tear down a building for us.
Structural provisions apply everywhere. E.g., the clause giving Congress the power to make rules for captures on land and water is applicable to captures within and outside US territory.
Some provisions explicitly apply abroad. E.g., the commerce clause, granting Congress the power to regulate commerce with foreign nations.
Some provisions, by their very nature, cannot apply abroad. Verdugo-Urquidez is a good example of this. There's no way to apply the Fourth Amendment abroad, because, for one thing, the warrant requirement would be impossible to apply where there are not US courts.
And that leaves many provisions where a historical or policy judgment has to be made. The one that causes the most trouble is the Due Process clause of the Fifth Amendment. The Court has made some noises in Verdugo and in Eisentrager that it does not apply, but on the other hand, the Balzac case seems to imply that at least fundamental rights do apply outside the US. And lower courts, in cases like Xiao v. Reno and US v. Toscanino, have held that it does apply at least to outrageous acts of the government.
Was there any evidence to back up the claim of a "verbal demand"? The article did not say.
Otherwise, PatHMV is correct. There could have been a lot of behind the scenes action that we are unaware.
So let's look at the following question: say that instead of asking the local government for help, the ambassador would have sent the marines guarding the embassy to evict the woman. Should she then sue in an Uzbek court, in a US court, in both?
Disclosure: I am a taxpayer but not a citizen.
But that's how the process goes. If the plaintiff does not have standing as a threshold matter, the court never has to adjudicate whether or not there was actually a taking by the U.S. government.
On your hypothetical, (a) yes she should sue in Uzbeki court, and (b) vis a vis the U.S. it sounds more like a claim under an expropriation treaty than a Fifth Amendment claim (but that's way outside the scope of my meager knowledge).
You seem to be the one assuming facts not in evidence. Sure a lot of things could have happened, but where is the evidence, or even the claim, that they did?
As far as saving the money, as some above have suggested, the costs of the legal work probably exceeded the cost of buying the cafeteria. In any case, not simply grabbing the property surely can be justified as a sound public relations expense, if nothing else.
Besides, your implicit assumption that the interests of the US citizenry were best served by not paying compensation seems wrong, or at least questionable, to me. Suppose the question of whether to pay compensation had been put to a national referendum. How do you think it would turn out? How would you vote?
So you are claiming that even if it was a taking requiring compensation under the 5th amendment, her being a foreigner would preclude relief?
I'm just saying that the federal courts adjudicate standing issues before factual issues.
One thing that does seem to be missing from this case is evidence that the US embassy colluded in taking the property without compensation. It is at least possible on the information that we have that the US requested the removal of the cafeteria in the expectation that she would be compensated, in which case the fault would like only with the Uzbek government.
Once she filed suit against the US, wouldn't somebody find out whether she had been compensated?
1) the political question doctrine along with the takings clause prevents the court from determining that the US was responsible for the actions of the local authorities (ie, the Takings Clause does not apply extraterritorially to takings performed by third parties - particularly third-party foreign governments, regardless of accusations of collusion or control)
2) As the land is owned by Uzbekistan, presumably the "local authorities" were acts of the Uzbek government itself, and the Court of Claims lacks the competency to determine whether the taking was illegal. Nor does the taking violate international law (an exception to act of state), as Ms. Atamirayeva is an Uzbek citizen.
This decision may have more important consequenes when the United States *itself* is the actor doing the taking. Maybe the decision is the same, but it would have been far preferable for the Court to wait for those facts (and to see the consequences of such a potential ruling), before deciding the issue.
Do you think the US should be free to take property in other countries? That's the result of this case and it hardly seems moral. I don't see why the law shouldn't track morality here, why should the US rely on legal loopholes of dictatorships to take property in other countries- we're showing ourselves to be no better than the dictatorship by doing so.
Maybe, maybe not, but I don't see how that bears on whether the US colluded with the Uzbek government in the first place. It seems to me that several scenarios are possible:
(a) the US asked the Uzbeks to get rid of the cafeteria, thinking, possibly naively, that the Uzbeks would follow something like US condemnation procedures and compensate her reasonably. The Uzbek's, however, deliberately tore down her cafeteria without compensating her.
(b) the US asked the Uzbeks to get rid of the cafeteria, knowing full well that they would simply tear the place down without compensation. In this case, the US and the Uzbek government are jointly responsible (morally though perhaps not legally).
In the former case, if the US subsequently learned that the woman had not been compensated, it would not really be morally responsible but ought either to have raised the issue with the Uzbek government or compensated the woman itself, which would probably have cost little and been a nice gesture.
What if the lady, instead of owning a cafe, was a mugger who specializes makes her living robbing Americans on their way home from the embassy. Let's further assume the host nation took whatever evidence the embassy handed them and summarily threw her into prison without benefit of a trial, no counsel, and of course no trial by a jury of her peers. Would you all "we have a moral obligation"ers hold that she can sue in federal court for a violation of her constitutional rights?
As one of the "moral obligation" advocates, may I point out that in my very first comment I specifically said, "leaving Constitutional questions aside?" There is a difference between a moral obligation and a legal one. I ahve expressed no opinion on the legal aspects. (Though I note that the Fifth Amendment requirement for just compensation does not specify any exceptions.)
Further, this case does not involve some attenuated connection to a request by the US government. It involves a direct request.
Bill Poser,
I'm not sure I buy your distinction, though I'm glad you think we should pay regardless. Once you know you've done harm, even if inadvertently, do you have no obligation to the harmed individual?
What distinguished Roe from previous case was a leap that because the term person lacks application in a context and the Constitution mandates no rights or protection, one can infer that there no substantial protective state interest in that application. This inference was explicit in Roe, which very clearly held that because the term "person" lacks prenatal application, it necessarily followed that Texas' claim of compelling interest in the prentatal context had to fall to the ground.
But as the Eisentrager/Verdugo-Urqidez cases make clear, lack of application of the term "person" in a context in no way implies that the Constitution endorses treating a human being in that context as nothing more than so many lumps of meat. Our law has never made such an inference in any other of context in which the term "person" doesn't apply. The leap of logic the Roe Court made is simply bogus, with no basis in our law. We don't consider the principles animating our decision to participate in the Geneva Conventions to be in any way antiquated, or in any tension with constitutional values, just because our participation in those conventions is voluntary and our constitution doesn't require it. The fact that the term "person" does not apply in a context in no way diminishes a state's interest in sometimes deciding to voluntarily apply priniciples it considers to be based on morality and justice, or its decision to sometimes let these principles control in ways that can sometimes limit Americans' personal choices.
Again, the moral obligation is not to let her sue but to compensate her. It has nothing to do with allowing access to US courts. It has to do with making a lawsuit unnecessary.
So there's no issue of a moral obligation to extend American constitutional rights to the mugger. Besides, there are some differences between
a) causing an innocent person's property to be destroyed
and
b) causing a criminal to be arrested
These are left as an exercise for the reader.
This was a judgment on the pleadings. The allegations in the complaint have to be read in the light most favorable to the plaintiff. One also has to draw every reasonable inference in the plaintiff's favor.
If this case had continued, the government might have contested whether it had actually taken anything. In this context, however, the court had to assume that a taking had occurred.
The really bad thing about this opinion is that it depends entirely on badly distinguishing the one binding precedent. The connection to America in that case was very tenuous.
Do the survivors of the URAJU dissedents have a claim against the US government in a US court? A moral claim?
I don't know the precedent, but the case under discussion would seem to be dispositive. As for a moral claim, I would think not, unless the US government were complicit. Benefiting from the misdeeds of the others that one did not intend to cause does not create a moral obligation.
And some of the hypotheticals are fairly absurd - I don't think one needs to agree with Bryson's opinion to believe that breach of duty and causation are basic principles of law. The hypotheticals where the US would not be liable regardless of the decision - or even regardless of the political question doctrine - aren't much in the way of hypotheticals at the end of the day.
But in the actual case the US did intend to cause the destruction of the cafeteria for its benefit. What was the misdeed that the US did not intend to cause?
Was it the failure of the Uzbek government to pay compensation? It would not have been hard to ask whether it would be paid. If we asked, then we knew we were causing damage. If we didn't ask, the best analogy is to an accident. We caused damage through negligence, and that creates the obligation.
There's another interesting thing here. All the legal arguments about how the US doesn't have to pay are based, obviously, on cases from US courts. Suppose a foreign country caused you some harm, and that country's courts rule that it has no liability. Would you feel fairly treated?
No. Does this mean that the courts another country have standing to offer you relief? Is the defendant fairly treated when plaintiffs hunt through the world to find countries with plaintiff-friendly laws so they can hale defendants into court.
That, of course, is not what hapened here. The plaintiff went to defendant's own country.
The court,in deciding standing, assumed the facts to be those most favorable to the plaintiff. There is no evidence here as to what Uzbekistan actually did to the plaintiff. For all we know, she got fair value fro her property. For all we know, she was boiled in a kettle (but just until rare; she hs survived to sue).
I don't understand your last comment. The court's decision on standing might be right, for all I know. I'm just pointing out that saying "After careful reflection, we have decided that you can't sue us," sounds a little funny.
There are obviously things we don't know. But why assume she got fair value when there is no indication she got any value, and she felt compelled to sue?
If she did get fair value, then fine, but if not we ought to give it to her. Saying "sue me" doesn't strike me as the right thing to do.
It's good to be the King!
(Sorry, couldn't resist.)
b. Only "persons" have a constitutional right not to be deprived of life, liberty, or property.
c. The plaintiff in this case has no constitutional right not to be deprived of life, liberty, or property.
What inference can you draw about this plaintiff?
From Roe v. Wade (term person in the Bill of Rights lacks "prenatal application")
It was a huge mistake for Texas to have hinged its case on a claim that a fetus is protected by the Constitution it didn't need to hinge its case on such an all-or-nothing approach. It was a huge mistake to conclude that if a state is not required to treat someone not protected Instead, it should have pointed out that there are actually a wide variety of contexts in which U.S. law has historically extended significant protections to human beings not protected by the Constitution despite a complete lack of any obligation to do so. Not only does U.S. law routinely provide protection to foreigners in commercial transactions sometimes provide compensation to bystanders harmed by U.S. military and other governmental activities, it provides protection, under certain circumstances, even to enemy soldiers sworn to kill us.
It simply cannot be inferred that, merely because a textual analysis of the Constitution concludes that a class is not provided constitutional protection, the state lacks any strong interest in ensuring that its citizens behave with fairness and decency towards those outside its own scope.
Never in our history have our courts ever held that the constitutional rights of citizens limit the ability of our law to provide protections to those who are extra to constitutional coverage. Indeed any application of Roe would have absurd results.
Congress not that long ago prohibited U.S. citizens from have sex with minors abroad. Can such a law have any foundation under Roe? For if citizens' interest in sexual liberty is truly so important that it permits terminating non-persons, how can one possibly argue that the state has any business impeding that interest in the far lesser matter of simply using them as dildoes?