In Boumediene v. Bush, decided June 12, 2008, the U.S. Supreme Court extended the constitutional privilege of habeas corpus to noncitizens detained at Guantanamo Bay, Cuba. Courts will now be called upon to assess the propriety of American detainee treatment practices against unclear constitutional standards. The strength and contours of the due process protections the U.S. Constitution will afford these detainees is still an unsettled question. The Lexington Principles are designed to help guide the development of American due process standards as they move outside our borders. These Principles are also intended to serve as a model for those seeking to make refinements in the domestic law of any nation based on prevailing transnational norms.
The Lexington Principles on the Rights of Detainees is a body of international due process principles reflecting the prevailing transnational norms in the area of detainee treatment. These Principles are based on international human rights law, but have been specially designed to facilitate internalization into the domestic legal systems of the United States and other common law countries. The relevant international norms have been reformulated into the familiar common law due process framework in order to provide the linguistic bridge necessary to ease domestication by lawyers and jurists in common law countries that have been conditioned to attach special significance to rights couched in the language of "due process."
Central to the Lexington Principles is the uncontroversial proposition that there is a fundamental human right to physical liberty afforded under both the U.S. Constitution and international law, and this right is protected by the guarantee that no deprivations will occur without due process of law. This fundamental point of mutuality is then used as the anchor for all other rights contained in the instrument which are treated as essentially derivative of this central guarantee.
To further assist internalization by domestic judiciaries, these principles also propose the recognition of a new "Transnational Incorporation Doctrine" under which the most fundamental aspects of international human rights law could be constitutionally domesticated through incorporation into the Due Process Clause of the Fifth Amendment to the U.S. Constitution in a manner similar to the way the federal Bill of Rights was applied to the states. This suggestion is intended to simplify the jurisprudential process ahead and reduce subjectivity as judges begin to determine which due process rights extend beyond America's borders.
*The Lexington Principles Project is an independent international project on the rights of detainees hosted and supported by the School of Law and Washington and Lee University Institute for Honor. Its members hail from many different disciplines and institutions.