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Abstract

In the United States, the law prohibits the government from torturing its citizens.

U.S. law also prohibits the government from sending its citizens to another

country where they would likely be tortured. These two scenarios seemingly

covered all possible ways that the U.S. government could bring about the torture of

its own citizens - until Munaf v. Geren, 553 U.S. 674 (2008). In Munaf, the

Supreme Court posed an intriguing question: Does the law also forbid the U.S.

government from transferring custody of an American citizen to a country that

will likely torture him, when the U.S. government was maintaining custody of that

citizen within, and at the permission of, the country that engages in torture? This

Article seeks to definitively close this possible loophole through two points of attack.

First, it looks to emerging theories on the extra territorial application of the

Constitution and concludes that Fifth Amendment Substantive Due Process

extends beyond America's borders to protect her citizens from any government

action that would lead to their torture. Second, this Article explores the federal law

that ostensibly leaves open the possibility for torture and, after analyzing its

drafters' intent as well as the international conflicts that a pro-torture

interpretation would cause, concludes that any loophole found is false.

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