However, doesn't someone who commits treason give up their rights as a citizen?

Habeas Corpus is a right of any person, not any citizen, so this is moot.

Even if it wasn't, obtaining a treason conviction is exceptionally difficult... particularly since we are not at declared war with any nation state, so it's an impossible crime to commit right now: https://www.law.cornell.edu/constitution/articleiii

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.

Habeas applies to persons, even on foreign soil: 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.

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.

The courts have held arbitrary and prolonged detention, and forced disappearance are actionable under the statute.

EDIT: s/if/of/ autocorrect typo

I don't think that's true / settled law for US citizens. The current problem rather is that the of identity is unknown, making it hard to establish standing as a next friend to ask for habeas relief. Therefore ACLU is asking for it to be allowed to act as such, arguing that it can't be the case that keeping the identity secret prevents everybody from acting as next friend. Which seems like a pretty fair argument.

Andres

From Wikipedia:

>The November 13, 2001, Presidential Military Order purported to give the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without legal counsel. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights and, indeed, in Hamdi v. Rumsfeld (2004)[38] the U.S. Supreme Court re-confirmed the right of every American citizen to access habeas corpus even when declared to be an enemy combatant. The Court affirmed the basic principle that habeas corpus could not be revoked in the case of a citizen.

You'd have to convict them first, and you'd have to charge them to do that. Keeping a citizen detained without charge is a violation of human rights and something you only expect from a totalitarian regime.

If it walks like a duck. And talks like a duck. Then it's a duck.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

He has not been convicted of any crime, let alone treason. He hasn't even been formally accused of any crime. He's just locked up, without access to a lawyer, without any charges being laid against him.

Even if true, only after a court /jury decides. "Trump" can't say, "You committed treason, you have no rights," he can accuse you of treason and take you to court.

Even if that was the case how would be the treason verified?

If it doesn't need to be verified, it's like there's no rule of law at all -- authorities merely need to say that someone is a traitor and that's it.

- You can't lose your rights without due process of law. If the mere assertion was enough we could throw anyone in the clink without meeting any burden of proof.

- Treason is only special in that the high bar to prove it is outlined in the constitution and that it carries the possibility of the death penalty. It has no bearing on your rights as a citizen.

- The right to discover whom is being held and for what purpose is so basic that by definition it must apply to everyone including non citizens or else it is worthless because you first necessarily need access to this information or to the party involved to establish the basis of anyone's right. If they disappear you in the night we can't establish that you have rights that are being trampled if all we have is a theory that its you the government is holding in a gulag.

US gov. can violate these at their own peril. It's all based on reciprocity, assuming US citizens would also get worse treatment elsewhere.

https://en.m.wikipedia.org/wiki/Boumediene_v._Bush

That'd not hold for areas of active hostilities however.

IANAL.

The US is actively destroying the rule of law their forefathers died building.

The issue that this is done to anyone, without any public oversight or power to do anything about it is troubling.

If they have committed certain crimes, then they can be convicted and held after the end of the war, but that’s something of a special case. Many Confederate soldiers during the Civil War never understood this (remember, the Union declared that the South couldn’t secede, which would have made all Confederate POWs US citizens).

But they sent letters home wondering why they hadn’t been informed of charges against them, given a bail hearing, or promised a speedy trial. I think it’s a safe bet they also didn’t have an attorney represent them during any questioning. They were confused about why they were in a prison even though they hadn’t been arrested for a crime.

(Note that I don't at all think it's ok that they're not releasing the name of this prisoner, accept some parties next friend status, or release that the prisoner is cooperating)

Also don't we have to be at war to have POWs? The US is involved in a number of conflicts but none have been declared wars.

Not my understanding, no. Which POW rights are you saying they've been denied? The problem with POW / EC is, to my understanding, more about them largely not actually being uniformed soldiers. Which they can't really be because they're part of a non-state entity.

> This is also why they are not kept on US soil, yes?

POW are very commonly not kept in the "home country" of a warring force? Being in the US, or a de-facto sovereignly controlled area like Guantanamo, would give them additional rights, that's true, but by my reading that's unrelated to being a POW, EC or whatnot.

> Also don't we have to be at war to have POWs? The US is involved in a number of conflicts but none have been declared wars.

That's why the 2001 AUMF is so important. The US is essentially at war with AQ and associated forces, except that they're no state entity so you can't formally declare war. And e.g. ISIS is argued to be a successor of al quaeda. Hence they argument that the laws of armed conflict are applicable.

IANAL.

Please do not mistake my arguments here to be arguing that I agree with all that's done under this logic. I'm only saying that it's not quite as simple as often argued.

This situation is defined by the Geneva Convention. When someone joins a fighting force with no flag, then they enter a kind of stateless situation. As far as the US is concerned, they are now subject to the president's war powers.

Do we really expect US soldiers to be trying to mirandize people on the battle field because they might turn out to be US citizens? What about preserving the chain of evidence and securing the crime scene?

Yes, this dude is now being held somewhere and not on a battle field, but how would any criminal prosecution have any chance of succeeding? It is absurd to look at this as some sort of criminal case.

At the very least, I expect the US to not simply shrug its shoulders, decide it's too complicated and just kidnap and kill Americans instead.

While I am sympathetic to this perspective, I don't think it's too much to ask that they prove it.

> Do we really expect US soldiers to be trying to mirandize people on the battle field because they might turn out to be US citizens? What about preserving the chain of evidence and securing the crime scene?

No one is saying any of that, that I can see. All that's being demanded is that now that this person is known to be a US citizen, that he be charged with a crime if he's to be held.

This isn't a criminal situation. It's a war situation.

FWIW, so far the civil courts have a way higher success ratio than the absurd military courts system. It's not that hard to convict people on the basis of material support charges etc.

Our constitution was written for times of war and peace. When he stopped being an enemy outside our lines with a gun and started rotting in a prison cell it became a criminal issue.

I'm not concerned with his well being. I'm concerned about setting a precedent that allows people to be detained without proof applying to innocent people.

There are many who are currently in some form prison on US soil, who have no access to legal counsel, who have not been charged with any crime (though they have been accused), who will not get out out because no-one outside the system even knows they are there.

This is a fundamental right of the US government - it does not have to follow any clause of the US Constitution it does not want to. That is, the rights of the US government trump the rights of the citizens of the US.

You citizens are just irrelevant and just there to do as you are told. When you do get a little upset, you'll get a small useless dirty bone thrown to you to gnaw on. So shut up, do as you are told and we'll keep you safe and sound, because we are the "good guys" and you are nothing.

If you took time to understand the psychology of what is happening worldwide to all governments and nations, you would recognise that, in general, the citizens of every nation are being ignored by those who are supposed to be responsible to them.

It is unfortunate that the citizenry of the US has lost sight of the incredible freedoms, privileges and responsibilities inherent within the US constitution. The fact that there is now publicised the above situation and the courts and government will not take the proper action and the citizens are not out protesting to all of their respective representatives is highly indicative of how far the US has fallen.

I may live in a country that has no such constitutional protections, but we appear to have a few more actual protections than the citizenry of the US. My own country has endemic problems and in many ways we are following the dark path of the US.

If a population cannot stand up and say no to their government then any actions by that government is then acceptable to and condoned by the citizens.

It is lamentable that governments and even courts push the idea of "rule of law", when so many laws are either plain stupid or are just downright wrong. "Rule of Law" means that it applies to everyone including the government. If any group is beyond or above the law then you no longer have the situation of "rule of law" applying.

In the US, you have a provision of Jury Nullification that is extremely powerful, yet you are not taught about this, nor is it legitimate to discuss the subject in public.

The imprisonment of anyone without due process and not sticking the the principle of "not guilty until proven beyond a reasonable doubt" has ensured that the government and its associated LEO's, spy agencies and defence forces can get away with whatever they want.

I personally do not like nor consider the ACLU to be an honourable group, but they do go to bat for various people that need help in these kinds of situations, especially when the government exceeds it privileges.

On final note, my original comment was intended to stimulate discussion on the limits on what is allowed under the US constitution for all the parties involved. Maybe my point was lost due to not being a US citizen and the interesting fact that many in the US think American is English and so fail to understand such subtle comments.