Why may the German government decide if Jan B&#246;hmermann will be prosecuted? According to the German ZEIT ONLINE article Bundesregierung prüft Strafbegehren der Türkei, Turkey requested that Germany prosecutes the German citizen Jan Böhmermann over a poem, and now German politicians in the Bundesregierung intend to decide if Böhmermann should be prosecuted. I don't get it. I thought Germany has a separaton of powers?
The Bundesregierung is (like the police, the prosecuting authority, etc.) part of Germany’s executive. StGB § 104a defines under which conditions offences described in chapter 3 Straftaten gegen ausländische Staaten (transl. Offences against foreign states), which consists of § 102, § 103 and § 104, can be prosecuted. One of the conditions is […] und die Bundesregierung die Ermächtigung zur Strafverfolgung erteilt = the Bundesregierung must authorise the prosecution.
Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent.
It is not a crime to say, &quot;The people want to bring down the regime.&quot; This specific tweet is almost certainly not illegal. Even if this guy is subjectively trying to overthrow the government, this would probably be an impossible prosecution for a lot of reasons. First: 18 USC 2385 deals with &quot;overthrow or destruction of the government.&quot; Does &quot;regime&quot; mean the government or does it just mean the Trump administration? I'm guessing it just means the administration, and if that's the case, you're dealing with a matter of public concern rather than a true threat of overthrow. Especially because this comes right after the election, you've got strong arguments that this is commentary on a matter of public concern, e.g., &quot;the people want to end the Trump regime,&quot; or maybe &quot;the people wanted regime change and therefore voted for Trump, or that you need a change in the constitutional form of government to do away with the Electoral College.&quot; Whatever it means, commentary on a matter of public concern cannot be punished under Section 2385. Rankin v. McPherson, 483 U.S. 378 (1987). Second: 18 USC 2385 deals with overthrow by &quot;by force or violence.&quot; To say you want to bring down the regime says nothing about how you want to bring down the regime. Third: The invocation of the Arab Spring could sort of cut in either direction, as it involved regime changes effected both through nonviolent protest and violent revolution. Fourth: Even if we interpret this as Ayloush saying that regime change would be good, that he personally wants regime change, or that other people should want or work toward regime change, that's still not enough to get you into the conduct prohibited by Section 2385, which does not prohibit &quot;doctrinal justification of forcible overthrow.&quot; Here's some relevant language from Noto v. United States, 367 U.S. 290 (1961): [T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material. This seems like pretty solidly First Amendment-protected political speech.
The Star Vancouver has a good article outlining the actual charges. Meng is not charged with "violating an embargo" but with defrauding U.S. financial institutions. It may be easier to report that the "crime" is violating sanctions but it's a little more nuanced. Meng is charged with defrauding U.S. financial institutions in order to avoid sanctions. From the article: The U.S. authorities allege Meng committed fraud by telling an HSBC executive her company was in compliance with U.S. sanctions against Iran limiting communication technology. The meeting took place in 2013, but the location was not revealed. HSBC is based in London with operations in the United States. Joanna Chiu, the Star reporter who followed the bail hearing, tweeted: US banks became concerned about the relationship between Huawei and subsidiary SkyCom. Meng told banks the two were separate when in fact "Huawei is SkyCom. This is the alleged fraud". Supposedly, the claims were in a PowerPoint presentation made to a financial institution in 2013. As a result of those claims, banks in the U.S. cleared financial transactions for Huawei. The nexus between Meng, Huawei, SkyCom and U.S. law is Meng making claims to HSBC that Huawei is not related to SkyCom inducing U.S. based financial institutions to unknowingly engage in transactions that violated sanctions with Iran. Thus, the fraud charge against Meng.
There is a legal concept of de minimis: the idea that some offenses, civil or criminal, are too small to be worth prosecuting. For example, a photograph of a city scene that incidentally captured part of a copyrighted billboard in one corner of the image infringes the copyright on that billboard. But if the copyright holder were to sue, it's virtually certain the suit would be thrown out due to the minimal nature of the infringement. Technically speaking, yes, what you describe is a crime. But any prosecutor who tried to bring charges to that effect is likely to be chewed out by the judge for wasting everyone's time. (Incidentally, assuming the reporter and property owner are US citizens, the crime is failure to cross at a designated crossing point (19 USC 1459, a customs offense) rather than improper entry (8 USC 1325, an immigration offense).)
There is no exception arising from the Espionage Act, indeed in Gorin v. US, 312 U.S. 19, one of the holdings is that &quot;In a prosecution under §§ 1(b) and 2 of the Espionage Act, the jury determines whether the acts of the defendants were connected with or related to the national defense under proper tests laid down by the instructions&quot;. This does not mean that the prosecution will not be eager to avoid the possibility of jury nullification and may hope for a bench trial. Here is the transcript of the jury verdict in the trial of the Rosenbergs, and another report of an espionage conviction in a trial by jury. There is no evidence that Assange &quot;would not be afforded a trial by jury&quot; if he requested it.
Skyborn are a known phenomenon. Country Citizenship? Generally, the kid automatically gets citizenship from his mom (and father) through bloodline, so our skyborn on that plane is likely that citizenship(s). There are cases that can't grant a citizenship that way (among them: Vatican is only granted ex officio) The sky is also treated as an extension of the land below. If the country you fly over has Jus Soli, it grants citizenship to the baby born above it. The USA has Jus Soli in its 14th amendment, our skyborn baby has dual citizenship to whatever country the mom is from. And in case the plane is over unclaimed water - think a nonstop flight Vancouver-Tokyo by Lufthansa - maritime law applies: The airplane is registered somewhere and treated as territory of that land while over international water. Lufthansa is in Germany, so the kid is, on paper, born in Berlin Germany (as that is what Germany prescribes for air- or seaborn). Germany does not use the unrestricted jus soli but the first test is the bloodline to determine what's the kid's citizenship is, unless the kid would have no citizenship through bloodline. So, if any one parent is German, the child is German. jus soli applies mostly to children of someone who has a permanent residence permit for at least 3 years and has been in Germany for the last 8 years: then the kid is (also) German, even if that grants dual citizenship - till the child is 23 and has to choose one of its citizenships. However, if all known parents are stateless or can't grant the kid citizenship through their bloodline (Yes, that happens!), then the kid born on this international flight has the right to become a German citizen - but some rules still apply. Which City/District/State is responsible? Now, which state's office is responsible? That is even more tricky. Technically, OP's kid that is born in Nebraskan Airspace is a Nebraskan, so it should be a Nebraskan birth-certificate. But the general rule in maritime practice would be to file the papers in the next port the ship lands, that would be Maryland if applied to planes. For a german registered ship or plane (my Lufthansa example), the responsible municipality would be Berlin, unless another municipality is responsible. US State citizenship? And then, I thank hszmv for this US Addendum: It should be pointed out that in the U.S. state citizenship is based on primary residency and can be changed over time. I've personally been a Maryland citizen, a Florida Citizen, and a Maryland citizen for a second time in my life. Usually state citizenship denotes exclusively where your vote is cast. No state can restrict a U.S. citizen from taking up residence in that state per constitution. So the Nebraska vs. MD distinction is academic only... the kid could move to California for the rest of his life without much fanfare. So, as a result, let's assume the parents of the Skyborn actually live in New York. Then te kid gets registered as a New York Citizen, his place of birth is &quot;Above Nebraska&quot; (or the state's equivalent rule) on OP's hypothetical. The couple on the Lufthansa flight could ask to have Berlin (Germany) written into the record, as that is where the interior of all Lufthansa planes is to be considered under the law over international waters.
Claiming to be independent is probably not a crime: the family that say they have set up the Principality of Sealand have never been prosecuted (though that may have something to do with the difficulty of arresting them). It does not, however, excuse a British subject from the ordinary duties of paying taxes and the like; anyone in a more accessible (and more clearly British) part of the country would be subject to the normal forms of law enforcement, including imprisonment for contempt of court if they refused to obey court orders. Despite the more eccentric theories of the 'sovereign citizen' movement (who do exist in the UK), the fact that somebody living in Britain is subject to British laws is not open to negotiation. Resisting this law enforcement by force would not be a good idea: as well as the fact that the Government has access to bigger and better armed forces than you do, it would probably render you guilty of treason. The Treason Act 1351 (as amended and translated) makes it illegal to "levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere"; the good news is that the death penalty for treason was abolished in 1998 (some time after that for murder).