Foreign Surveillance and Human Rights, Part 1: Do Foreigners Deserve Privacy?

This post is part of a series: Intro, Part 2, Part 3, Part 4, Part 5.

One robust feature of US legal discourse is an emphasis on citizenship as a basis for fundamental rights. This is true not only of case law (viz. the US Supreme Court’s holding in Verdugo-Urquidez, dealing with a search by US agents of a Mexican national’s property in Mexico, that non-resident aliens are not protected by the Fourth Amendment to the US Constitution), but also of public debate more generally, which frequently starts from the assumption that citizens naturally have constitutional rights, whereas foreigners do not. But while this kind of citizenship discourse is especially prominent in the US, it is by no means confined to it. Notably, the statutes regulating surveillance powers in all of the Five Eyes countries frequently make distinctions between eavesdropping on citizens (and perhaps permanent residents) versus non-citizens, as well as surveillance that takes place in or outside the state’s territory. Under these statutory frameworks non-citizens enjoy fewer protections than citizens, if they have any rights at all.

In order to assess its implication in international human rights law, we first need to look at the possible justifications for this citizenship-oriented approach. In contrast to arguments by David Cole (here and here) and Kenneth Roth in favour of a global human rights to privacy, Orin Kerr at Lawfare rightly points out that the citizenship-oriented approach stems from a different conception of government, one of ‘governments as having legitimacy because of the consent of the governed, which triggers rights and obligations to and from its citizens and those in its territorial borders.’ This is an essentially contractarian conception of the Constitution, which sees it as the manifestation of a social compact.

But while social contract theories have a long pedigree, their application in this particular context and in this particular way are deeply problematic, both descriptively and normatively. First, there is quite a leap between a postulated, fictional social contract in political philosophy and the drafting and interpretation of positive legal instruments such as the US Constitution. Second, the text of the relevant amendments to the Constitution generally does not differentiate between the rights of citizens and non-citizens, normally speaking of ‘persons,’ while the Fourth Amendment speaks of the ‘people.’ Third, there is little if any historical evidence that the framers of the Constitution or of its subsequent amendments paid any particular attention to the question of the extraterritorial application of fundamental rights, or made such strong associations between citizenship and rights. Indeed, that same founding generation was steeped in natural law thinking, proudly declaring ‘these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ Self-evident truths and unalienable rights do not mix well with citizenship.

Fourth, even if one accepts the general validity of social contract theories, as the Declaration of Independence does when it proclaims that ‘to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,’ it does not follow from this alone that the contract protects only its parties, i.e. that only those who politically legitimate the social contract (say by having the rights to vote and to stand for office) are those who can benefit from it. In other words, one can both believe that governments rest on the consent of the governed, derive their just powers therefrom and are accountable to their citizens, and that governments owe certain basic duties towards non-citizens as well. The two are not necessarily incompatible.

While social compact thinking undoubtedly informed the US Supreme Court’s case law on these issues, as in Verdugo, it would be a stretch to argue that the Court’s jurisprudence flows from any consistently applied grand theory. Rather, the lack of specific textual guidance in the Constitution allowed the Court to make stuff up as it went along, and this is what it continues to do to this very day (viz. Boumediene v. Bush).  The Court’s case law has never been consistent. It oscillated between universalist impulses to protect fundamental rights of all persons and the fear that this would be unmanageable in practice, with the consequent resort to citizenship as a limiting principle.

Compare, for example, the split between the majority of the Court in Eisentrager, with Justice Jackson writing that ‘[c]itizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship, nor have they sapped the vitality of a citizen’s claims upon his government for protection’ and Justice Black writing for the minority that:

As the Court points out, Paul was fortunate enough to be a Roman citizen when he was made the victim of prejudicial charges; that privileged status afforded him an appeal to Rome, with a right to meet his “accusers face to face.” Acts 25:16. But other martyrized disciples were not so fortunate. Our Constitution has led people everywhere to hope and believe that, wherever our laws control, all people, whether our citizens or not, would have an equal chance before the bar of criminal justice. … Our nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live.

It is especially because the law on these points is essentially Court-made and evolving that its normative justifiability needs to be continually reassessed (on this see in particular the works of Kal Raustiala and Gerald Neuman).

In that regard, it is hard to escape the conclusion that basing fundamental rights on citizenship is morally arbitrary. Why? Because in the vast majority of cases we acquire citizenship merely as an accident of birth, and not because of any moral desert (say because we served in the armed forces). Any theory that claims that Anwar Al-Awlaki was constitutionally entitled not to have his life taken without due process of law, whereas an undeniably innocent 10-year old Yemeni boy was not, even though they were both killed by a drone strike in Yemen, only because Al-Awlaki just happened to have been born on US soil, is in need of some serious re-thinking.

The plausibility of the contractarian, citizenship account is not helped by its manifest inconsistency. Note how even ardent contractarians routinely accept that foreigners have constitutional rights once they are on US territory. This is simply obvious. But the obviousness is never really explained, other than by saying that this is how it has always been, which is course normatively neither here nor there. If, in other words, one is entitled to fundamental rights because one is a member of the social contract, it is not at all clear why one would become a member deserving of protection merely by touching one atom of American soil, like some modern-day Antaeus.

In Eisentrager Justice Jackson tried to explain this inconsistency by saying that a foreigner’s ‘[m]ere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights.’ To my eyes at least is seems no less dubious for fundamental rights to depend on a stamp in one’s passport than on the passport itself. To disprove this theory I need only point to aliens present in the country unlawfully, who in the United States number in the millions, whose basic rights are unquestionably deserving of protection but who got no ‘implied assurance of safe conduct.’ From a purely contractarian perspective territorial sovereignty cannot possess some magical protective quality for the foreigner – a consistent contractarian would have to accept, at the very least, that illegal aliens enjoy no constitutional rights whatsoever.

The citizenship-based distinctions drawn in US law, as well as in the laws of other states engaging in mass surveillance, thus cannot be waived away merely by crying ‘social compact.’ Their rationale is far more prosaic; one not grounded in moral theory, principle, or philosophy, but in political expediency. It is a basic feature of human nature that it becomes the more easier for us to discount the interests, emotions, and rights of others the more distant, different, and de-personalized they are. Out of sight, out of mind, outside empathy. And so while our squeamishness and moral intuitions will not allow us to easily disregard the rights of a neighbour, even if he is an illegal alien, drones in Pakistan or wherever are a different story. Such is also the case with surveillance – we will naturally care more if it happens to us, or to people like us, then if it happens to nameless outsiders.

My point in making this rather substantial digression into US constitutional law is simply this: the question of its extraterritorial application, to citizens as well as to aliens, was not predetermined by the Framers. It is, and has always been, a moral choice. And it is ultimately for US lawyers, courts, and the general public to make this choice, consistently or not. But that choice has been made in the international human rights system. By their very definition human rights cannot depend on nationality alone. Human rights treaties cannot be assimilated to social compacts, nor depend for their applicability on morally arbitrary criteria such as the mere accident of birth; they are grounded in the idea that all human beings possess inherent dignity deserving of protection.

The idea of the universality of human rights was borne out of bitter experience. History has long taught us that predicating fundamental rights upon citizenship allows for rights to be denied if citizenship is revoked. I need only mention the disemancipation of the German Jews through the 1935 Nuremberg Laws, or the stripping of the citizenship of South African blacks through the creation of the Bantustans and the passing of the 1970 Black States Citizenship Act. Although there is no inevitable causal relationship between apartheid and genocide and predicating rights upon citizenship, we know where that road can in extremis take us. This is why human rights jurisprudence has outside the areas of immigration and political rights treated nationality as a potentially prohibited grounds of discrimination, allowing distinctions based upon citizenship only if they are objectively and reasonably justified.

We can accordingly draw two basic lessons from the preceding discussion for the applicability of human rights treaties to mass surveillance programs:

(1)  The threshold question of whether individuals enjoy human rights generally, and the right to privacy specifically, vis-à-vis a particular state should in principle not depend on whether they have that state’s nationality. In other words, if the UK at the same time intercepts the electronic communication of one UK national and one non-UK national living outside the UK, either both or neither have human rights vis-à-vis the UK. The citizen cannot be treated preferentially.

(2)  If human rights treaties do apply to a particular interception, and the intercepting state draws distinctions on the basis of nationality (as many of them do), this potentially implicates not only the privacy guarantees in the treaties, but also those on equality and non-discrimination. A nationality-based distinction would be justified only if it pursues a legitimate aim (such as the protection of national security) and the measures taken are proportionate. If the rationale for protecting privacy interests is the value of the autonomy and independence of individuals, of enabling them to lead their lives without state intrusion, then distinctions based on nationality alone would seem hard to justify. This is particularly so because it simply cannot be reasonably argued that non-citizens are as a class inherently more dangerous to the security of a state than its own citizens (viz. the 7/7 London tube bombings). This is not to say, on the other hand, that no distinctions may be drawn on the basis of the location or type of surveillance. But it would be difficult for the UK to justify, say, having one surveillance regime for its own citizens living in the UK, and another for foreign nationals who are also in the UK (cf. the Belmarsh judgment of the House of Lords).

With this in mind, my second post will look at whether the ICCPR can apply extraterritorially.