International Law

A Reply to David Cole on Rights of Foreigners Abroad

By Orin Kerr
Saturday, November 2, 2013, 1:54 AM

A few days ago, I posted a response to David Cole's Just Security post that had argued for U.S. law protecting the privacy of foreigners abroad. David has generously replied with an amusingly-titled post, We Are All Foreign Nationals — Even Orin Kerr.

I suspect that our differences reflect our priors, which in turn are based on two different conceptions of government. I tend to see 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. As I understand David, he has more of a global view of government, by which governments are accountable to all humans worldwide. I suspect that difference leads us to talk past each other a bit. Consider David's question: "Would we be satisfied to give the French authority to pick up all of our communications simply on a showing that we were not French and not living in France?" Under my conception of government, the question doesn't make sense. Because we don't have any rights vis-a-vis the French government, we can't "give the French authority" to do anything or have any valid claim to satisfy.

If I'm right that this difference explains our disagreement, then we're essentially playing out the majority and dissenting opinions in United States v. Verdugo-Urquidez, with me echoing Chief Justice Rehnquist's majority opinion and David echoing Justice Brennan's dissent.