4 ms·

I agree that treason doesn't seem like a likely conviction, and even if so, it'd not take effect before a trial. But if this were not US citizen, I don't think

I agree that treason doesn't seem like a likely conviction, and even if so, it'd not take effect before a trial. But if this were not US citizen, I don't think they'd necessarily have US person status, because they are apparently not held in US territory.

hprotagonist 9y ago
person means person, not "US person". Habeas applies to persons, even on foreign soil: https://www.law.cornell.edu/supct/html/06-1195.ZS.html https://www.law.cornell.edu/supct/html/06-1195.ZS.html edit: see also U.S. v. Wong Kim Ark (1989). The case law on this matter is lengthy.
- anarazel 9y ago
  Doesn't that depend where and how they're held? Military detention in an area of active conflict does not allow for habeas relief, no? Boumediene doesn't seen to apply there because it's not an area of de facto US sovereignty like Guantanamo is. EDIT: s/if/of/ autocorrect typo
  - anarazel 9y ago
    FWIW, that's why a lot of the discussions around this will refer to the applicability/interpretation of the 2001 / 2002 authorization to use military force (AUMF). Because that influences what an area of active military conflict can be.
- rayiner 9y ago
  No, non-citizens in foreign soil do not have any constitutional rights, including habeas. Boumediene is predicated on the idea that the US has de facto sovereign jurisdiction over Guantanamo Bay Cuba. That reasoning wouldn’t apply in Iraq.
  - anarazel 9y ago
    > Boumediene is predicated on the idea that the US has de facto sovereign jurisdiction over Guantanamo Bay Cuba. Indeed. > No, non-citizens in foreign soil do not have any constitutional rights, including habeas. I think that depends on the context and the definition of constitutional rights. There's no direct habeas, but longer-term military detention theoretically is only available in an declared military conflict. Which in turn depends on things like the 2001/2002 AUMF, and whether ISIS is a successor of AQ etc. IANAL and absolute armchair amateur non-US citizen interpretation. > I'm an appellate lawyer.* In a past life, I was an engineer at a cognitive radio startup. Pretty damn cool.
    - rayiner 9y ago
      To be clear, I agree that long term detention might be illegal, on the basis of the AUMF, international law, etc. Those other sources of rights are in addition to those stemming from the Constitution itself.
  - will_brown 9y ago
    As a side note the Alien Tort Statute gives US Courts original jurisdiction over human rights abuses committed against non-citizens on foreign soil. The courts have held arbitrary and prolonged detention, and forced disappearance are actionable under the statute.

hprotagonist 9y ago

person means person, not "US person". Habeas applies to persons, even on foreign soil: https://www.law.cornell.edu/supct/html/06-1195.ZS.html https://www.law.cornell.edu/supct/html/06-1195.ZS.html edit: see also U.S. v. Wong Kim Ark (1989). The case law on this matter is lengthy.

anarazel 9y ago
Doesn't that depend where and how they're held? Military detention in an area of active conflict does not allow for habeas relief, no? Boumediene doesn't seen to apply there because it's not an area of de facto US sovereignty like Guantanamo is. EDIT: s/if/of/ autocorrect typo
- anarazel 9y ago
  FWIW, that's why a lot of the discussions around this will refer to the applicability/interpretation of the 2001 / 2002 authorization to use military force (AUMF). Because that influences what an area of active military conflict can be.
rayiner 9y ago
No, non-citizens in foreign soil do not have any constitutional rights, including habeas. Boumediene is predicated on the idea that the US has de facto sovereign jurisdiction over Guantanamo Bay Cuba. That reasoning wouldn’t apply in Iraq.
- anarazel 9y ago
  > Boumediene is predicated on the idea that the US has de facto sovereign jurisdiction over Guantanamo Bay Cuba. Indeed. > No, non-citizens in foreign soil do not have any constitutional rights, including habeas. I think that depends on the context and the definition of constitutional rights. There's no direct habeas, but longer-term military detention theoretically is only available in an declared military conflict. Which in turn depends on things like the 2001/2002 AUMF, and whether ISIS is a successor of AQ etc. IANAL and absolute armchair amateur non-US citizen interpretation. > I'm an appellate lawyer.* In a past life, I was an engineer at a cognitive radio startup. Pretty damn cool.
  - rayiner 9y ago
    To be clear, I agree that long term detention might be illegal, on the basis of the AUMF, international law, etc. Those other sources of rights are in addition to those stemming from the Constitution itself.
- will_brown 9y ago
  As a side note the Alien Tort Statute gives US Courts original jurisdiction over human rights abuses committed against non-citizens on foreign soil. The courts have held arbitrary and prolonged detention, and forced disappearance are actionable under the statute.