The Rights of Non-Citizens

-- By ElizabethEncinas - 11 Apr 2013

The sovereign state confers rights and rights cannot exist without the power of the nation-state. This is the underlying assumption of the Western conception of the nation-state system and legitimate power since the Treaty of Westphalia.

The modus operandi within and especially beyond the geopolitical borders of the United States, is that non-citizens have no rights. Indeed the interpretation of the Constitution has often fallen on the side of unveiled hostility to non-citizens regardless of their status as enemy combatants or civilians.Reading the constitution through a textualist lens reveals that there are clear distinctions between the rights and privileges of citizens and the basic rights of persons. Note the language of the 5th Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Compare this with the language of the Article II:

“ No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”

The clear differentiation of citizen vs. person in the constitution carries the implication that the Constitution confers the basic right of due process to all persons within the jurisdiction of the United States of America.

In Boumediene v. Bush (2007) this distinction was clarified when a Bosnian detainee at the U.S. base in Guantanamo, Cuba filed a petition for a writ of habeas corpus alleging violation of the due process clause of the U.S. Constitution. The district court and DC Circuit Court of Appeals ruled in favor of the government and in deference to the Military Commissions Act of 2006 but the Supreme Court overturned the decision in Rasul v. Bush. The Supreme Court decided that the MCA strips federal courts of jurisdiction over habeas corpus filed by foreign citizens detained at Gitmo and that the MCA is a violation of the Suspension Clause. Based on their interpretation of the constitution, detainees are entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and also under the Geneva Conventions.

Boumediene represented a legislative triumph for the rights of non-citizens but unfortunately it did not extend to the real world. There are still foreign detainees languishing in indefinite detention at Gitmo without access to legal counsel or due process. This is an illustration of the law being a “weak social force” and highlights the impotence of the Supreme Court to make a meaningful impact in matters of rights enforcement.

The violation of non-U. S citizen’s human rights in the U.S are well documented and systemic. A frequent violation is the deportation of lawful permanent residents for minor offenses. Many of these people have never lived in their country of origin and are unceremoniously deported to places they have no ties to. For those who have committed serious criminal offenses, the process of deportation leaves the country of origin with little warning or information on the person being returned and often there’s no formalized process to reintegrate the deportees to their home country.

Regarding drone strikes, the Executive has taken it upon itself to be the judge, juror and executioner of people….INCOMPLETE…

Section I

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Subsection B

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Section II

Subsection A

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