On the heels of this morning’s Fourth Circuit decision in the Abu Ghraib case comes another significant circuit-level decision–this one from the Fifth Circuit. The question in Hernandez v. United States is whether the Fourth and Fifth Amendments apply to a cross-border shooting by a U.S. Border Patrol Agent, who discharged his weapon in the United States, but killed a Mexican national (who lacked any other substantial, voluntary connection to the United States) on Mexican soil. In a nutshell, one 2-1 majority held that the Fourth Amendment does not apply, concluding that the Supreme Court’s 1990 decision in United States v. Verdugo-Urquidez categorically bars Fourth Amendment rights for non-citizens outside the United States (and, unlike some other appeals courts, accounting for the Supreme Court’s intervening decision in Boumediene); and a different 2-1 majority held that the Fifth Amendment does apply, based largely on application of Boumediene‘s three-part test for assessing the applicability of extraterritorial constitutional rights.
There’s a lot more to say about this decision, but it’s an interesting–and provocative–contribution to the burgeoning literature and continuing debate over the extraterritorial application of the Constitution after and in light of Boumediene…