Do persons accused of being &quot;enemy combatants&quot; have the right to a speedy trial, or can the US government hold them for as long as the govt wishes? In a recent Senate session, they were discussing the release of all Guantanamo Bay detainees. Senator Lindsey Graham claimed that since the people held there were enemy combatants, they did not have the same rights as ordinary criminal enterprises, and that the US government can legally hold them without trial for as long as the government deems necessary (source: https://www.youtube.com/watch?v=OGbwzX4Xlqg) Is Senator Graham correct in asserting that those deemed &quot;enemy combatants&quot; do not have the right to a speedy trial?
Enemy combatants do not have a right to a speedy trial and do not have the same rights as criminal defendants, but Senator Graham is incorrect in asserting that they may be held without trial &quot;for as long as the government deems necessary.&quot; Instead, they may only be held so long as the &quot;enemy&quot; with whom the detainee is affiliated is still an &quot;enemy&quot; in the context of a Congressionally authorized use of military force. Detention of an enemy combatant is a close cousin of detention of a prisoner of war. It is a basis for detention based upon the detainee's status, for which the military only has to justify the military detention by showing that the detainee is a combatant member of a group which is an &quot;enemy&quot;, such as a soldier, covert operative, or terrorist for that group. The term &quot;enemy&quot; is a term of art which means a country or non-military armed group with which Congress has declared war, or has authorized the use of military force against. For example, since the U.S. does not have Congressionally declared wars or authorizations for use of military force in place at this time against Russia and China, members of the militaries of Russia and China are not &quot;enemy combatants&quot; even though a large share of the U.S. military budget is devoted to preparing for war with these countries. Detention of enemy combatants is authorized to continue until the U.S. is no longer at war with, or no longer authorizes the use of military force against, the combatant force that the detainee is a part of (i.e. &quot;for the duration&quot;). This has happened in a recent case where the U.S. made a peace treaty with a particular group connected with the Afghan War discussed below. If the Authorization For Use of Military Force (2001) were repealed and not replaced by Congress today, all enemy combatant detainees in the U.S. would have a legal right to be released except the five that are currently facing separate quasi-criminal charges for specific wrongful conduct before a military commission, discussed below, rather than merely being combatants affiliated with a U.S. military enemy. The main due process protection is the right to bring a habeas corpus petition challenging your classification as an enemy combatant. In addition, the military evaluates whether the detention of an enemy combatant is lawful because the person is an enemy combatant, and whether this detention continues to be lawful in a Combatant Status Review Tribunal, rather than in a quasi-criminal court-like military commission. Since it is not a criminal offense/charge (instead, it is a military tactic), it is not subject to the speedy trial act requirement. As the Lawfare blog explains: On Oct. 19, Judge Amit Mehta of the U.S. District Court for the District of Columbia did something we have not seen in many a year: He granted a Guantanamo detainee’s petition for a writ of habeas corpus, ordering the man’s release. The man in question is Asadullah Haroon Gul (aka Haroon al-Afghani), an Afghan citizen who was captured alongside six other men in an operation by Afghan government forces in early 2007. All the men, it appears, were members of the armed group known as Hezb-e-Islami Gulbuddin (HIG) commanded by former Afghan Prime Minister Gulbuddin Hekmatyar. Though not formally part of the Taliban, Hekmatyar’s political movement and its armed expression, HIG, were aligned theologically and politically with the Taliban. And after the fall of the Taliban, HIG became one of the armed groups fighting against the new Afghan government, U.S. forces and other allied forces. In short, HIG for many years was a paradigm example of an “associated force” engaged in hostilities against the United States in connection with the larger conflict with al-Qaeda and the Taliban. Indeed, in 2011, a U.S. Court of Appeals for the D.C. Circuit opinion authored by now-Attorney General Merrick Garland expressly affirmed as much in Khan v. Obama. But here’s the thing about military detention authority: The scope of that authority will grow or shrink in accordance with the scope of the underlying armed conflict on which the claim of military detention authority is based. And thus it mattered a great deal when, in fall 2016, the then-government of Afghanistan reached a peace agreement with HIG. Thus, even without the eventual U.S. decision to withdraw from Afghanistan and end the fight against the Taliban too, the legal foundation for military detention in cases predicated solely on membership in HIG appeared to be going or already gone by late 2016. . . . In 2018, the Justice Department responded by abandoning its claim of authority to detain based on HIG membership alone. It argued that Gul still could be held, however, based on the distinct claim that Gul separately had been involved with al-Qaeda itself. Gul denies that argument on factual grounds, and for a time that was the central issue in the case. Then, with the recent full withdrawal of the United States from Afghanistan, Gul appears to have expanded his argument to include a much broader claim about the expiration of the legal grounds for detention. That claim, if accepted by the court, could have sweeping implications for other Guantanamo detainees. Courts have generally declined to enforce speedy trial protections for people detained as enemy combatants who are then transferred to civilian criminal courts such as Ahmed Khalfan Ghailani (who initially faced military commission charges discussed below) and Jose Padilla, the only U.S. citizen detained in the United States for conduct in the United States as an enemy combatant. Padilla was subsequently transferred from military custody to civilian federal criminal justice system pre-trial detention and tried and convicted there of a federal crime, while he was appealing his detention as an enemy combatant to the U.S. Supreme Court. This made the case moot, but left the U.S. Circuit Court of Appeals precedents made earlier in his case, which had upheld his detention as an enemy combatant in these circumstances, on the books as a binding precedent that the U.S. government could invoke in a future case. The leading modern case on the topic is Hamdi v. Rumsfield, 542 U.S. 507 (2004) which addresses the authority to detain an enemy combatant, and the scope of the habeas corpus remedy in the case of a U.S. citizen who is alleged to be an enemy combatant. The official syllabus summarizes the case as follows: After Congress passed a resolution–the Authorization for Use of Military Force (AUMF)–empowering the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant” for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi’s father filed this habeas petition on his behalf under 28 U.S.C. § 2241 alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi’s capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do “relief work” less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi’s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi’s detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government’s assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C. § 4001(a)–which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”– the AUMF’s “necessary and appropriate force” language provided the authorization for Hamdi’s detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure. Held: The judgment is vacated, and the case is remanded. Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Military Commissions Compared A Military Commission trial is different from detention as an enemy combatant. On November 13, 2001, President Bush issued a Military Order governing the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The Military Order effectively established the novel military commissions at Guantanamo Bay, which began in 2004 with charges against four Guantanamo detainees. In 2006, the Supreme Court struck down the military commissions (in Hamdan v. Rumsfeld), determining that the commissions violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions. In response, and in order to permit the commissions to go forward, Congress passed the 2006 Military Commissions Act (MCA). Congress significantly amended the MCA in 2009. In 2019, exercising authority granted to him under the MCA, the Secretary of Defense published an updated Manual for Military Commissions, which sets forth the current procedures that govern the commissions. The enemy combatant detainees who face military commission trials are a small subset of the total number of detainees: Of the 779 men detained at Guantanamo at some point since the prison opened on January 11, 2002, thirty two total have been charged in the military commissions. Charges were dismissed in 12 of those cases, and stayed in another. The U.S. government has procured eight convictions total, six of which were achieved through plea agreements with the defendants. U.S. federal courts have overturned several of the eight convictions in whole or in part. There are five cases are currently ongoing in the commissions—and another two pending appeal—including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the detainees alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial. Only one military commission case to date produced a conviction following a military commission trial, and that conviction was vacated on appeal in Hamdan v. United States (D.C. Cir. 2012). Another military commission defendant had his case transferred to a civilian criminal court where he was convicted following a civilian criminal trial (Ahmed Khalfan Ghailani) where he was convicted and is currently serving a life sentence in a federal prison. He is the only person originally charged by a military commission who is still incarcerated by the U.S., and again, in that case, outside the military commission process. Two of the six military commission guilty pleas were subsequently vacated in the cases of David Hicks, who was then deported to Australia, and Noor Muhammed, who was deported to Sudan. Five military commission cases remain outstanding. Footnote: Enemy Non-Combatants The parallel case law for civilians who are not combatant is Korematsu v. United States, 323 US 214 (1944), which while deeply criticized, has never been overruled as applied to non-citizens. This case held that the U.S. may detain a non-combatant civilian, even as U.S. citizen, who has ancestry from an &quot;enemy&quot; (with &quot;enemy&quot; defined in the same ways as in connection with &quot;enemy combatant&quot;) in an interment camp for the duration of a military conflict with that &quot;enemy.&quot; In that particular case, the &quot;enemy&quot; was the Japanese Empire upon which Congress declared war after the December 7, 1941 bombing of Pearl Harbor, and the non-combatant civilians who were interred were ancestrally Japanese or families of people who were ancestrally Japanese. While this precedent has never been formally overruled as as applied to non-citizens, it has received heavy criticism in legal scholarship and is no longer good law as applied to U.S. citizen who were merely born citizens of an &quot;enemy&quot; or shared the ethnicity of an &quot;enemy&quot;. The portion of the Korematsu holding that upheld this detention in the case of U.S. citizens was abrogated by a majority opinion of conservative justices in U.S. Supreme Court in the case of Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018), which stated (in a case upholding the legality of Trump's Muslim ban as modified from its original version): Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U.S., at 248, 65 S.Ct. 193 (Jackson, J., dissenting). But, it might very well continue to be good law as applied to non-citizens in the U.S. who were nationals of an &quot;enemy&quot;.
Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.).
Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof."
Can illegal immigrants sue the U.S. government if they got injured while being detained? Yes, if they are in the USA at the time. See the opinion of the Supreme Court of the United States in Zadvydas v. Davis, 533 U.S. 678 (2001): It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. [citations omitted] But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. (My emboldenment) In my research for this answer I came across a 2017 FactCheck.org article that disproved a fake news story that was doing the rounds. I have not repoduced it here to prevent its wider circulation by being found by internet search engines. Instead, this is what FactCheck has to say: Q: Did the Supreme Court rule that immigrants living in the U.S. illegally can’t sue anyone if they feel they’ve been mistreated? A: No. That claim was made in a bogus story published on satirical and fake news websites. The fake news story appears to have come from the case of Hernandez v Mesa that... ...centered on the 2010 shooting of a Mexican teenager [Hernandez] on the Mexican side of the Mexico–United States border by a U.S. Border Patrol agent [Mesa] who was standing on the U.S. side of the border at the time he fired his weapon. ... and whether the Constitution extends protection to an individual who is killed on foreign soil, even though that person is standing just a few yards outside the United States. Apparently it doesn't as, after much toing and froing, on 25 February 2020 the SCOTUS... ruled against Hernandez and held that the Court's precedent under Bivens did not extend to cross-border shootings.
The country where the accused person was arrested would extradite that person to one of the countries where the crimes had been committed. The extradition treaties or the law of the arresting country might have a rule to define how to choose which country took precedence. (Perhaps the earlier crime, or the more serious crime if they were different, or the closer ally might get priority.) Once the accused was extradited, s/he would be tried, and if convicted, sentenced. Once the sentence was completed, that person would be turned over to the second country for trial and possible sentence there. Sometimes, particularly if the sentence is long, an accused will be turned over to the second country for trial soon after conviction in the first country, under an agreement that the person would be returned to serve the sentence in the first country after the trial was over, whatever the outcome, and then sent back to the second country to serve any sentence imposed there. Or the second country could choose to count time served in the first country against its sentence, but I believe that this is not usual. Consider the case of Frank Abagnale who was sought by some 12 different countries when he was arrested in France. He was convicted and served time in France, then extradited to Sweden, where he was also tried, convicted and served time. Italy had requested his extradition, but he was deported to the US, where he was also tried, convicted, and served time.
The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted.
The governing law would be the Vienna Convention on Diplomatic Relations (1961). The relevant part is Article 29. Diplomats must not be liable to any form of arrest or detention. Diplomats are also immune from civil and criminal prosecution. Technically, it wasn't a US diplomat but a family member, but by Article 37 they have the same protection. The linked article suggests that her diplomatic immunity ended, but that's a bit of a non-issue. The host nation (the UK in this case) can declare anyone, diplomats or family to be persona non grata which indeed ends diplomatic immunity, but only after the person is allowed to leave the host nation. And when the act happened, the immunity was in place. Immunity cannot retroactively be withdrawn by the host nation.
That an enemy combatant does not have their weapon on them right now does not render them a non-combatant. If the Axis soldiers had been unconscious, it would have been a different story, but &quot;mildly drunk and gun out of reach&quot; isn't enough. It is forbidden have &quot;no quarter given&quot; as a policy, but that doesn't mean that an enemy has to be given an explicit chance to surrender, that just means that if the enemy does indeed surrender, that surrender can not just be denied. Most casualties in war happen due to artillery anyway, so a requirement to give the opportunity to surrender would be kinda meaningless. Where such a situation gets messy is if some of the Axis soldiers had tried to surrender on the spot. The SAS would then be expected to try and shoot only the non-surrendering soldiers. If everyone surrenders, and the SAS kills them anyway because they don't have the ability to take prisoners, that's a clear warcrime. Sources: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule46 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule47