Title: Natural rights in a positive world: do habeas rights extend to non-citizens detained abroad?

Authors: Peter C. LaGreca

Addresses: Pace University School of Law, 78 North Broadway, White Plains, New York 10603, USA

Abstract: Academics and practitioners sit worlds apart, despite daily engagement with the same issues. This article seeks to engage both communities in meaningful legal discourse by putting forward as a basis for argument a counter-factual variation of the fact patterns from recently decided United States case law. Illustrated by this hypothetical scenario is an inherently unfair legal arrangement whereby the Executive assumes virtually unlimited power and attempts to deny, entirely, the non-citizen detained abroad any voice. This article examines the 'unitary Executive' from a jurisdictional perspective of habeas corpus and places the issues raised by the Executive detainment of non-citizen 'enemy combatants' into a due process framework of affirmative constitutional protections. This article argues that the extension of habeas protection to those detained outside the United States will bring equilibrium to the separation of powers so that the global community may begin to cure the continued injustice for those detained by Executive Order.

Keywords: habeas corpus; non-citizens; enemy combatants; detainment abroad; United States; case law; USA; constitutional law; civil rights; human rights; war; military conflicts; jurisprudence; legal theory; Lakhdar Boumediene; Guantanamo Bay; detention camps; Cuba; George Bush; presidents; Bagram Air Base; Afghanistan; Fadi Al Maqaleh; Robert Gates; Military Commissions Act; legislation; statutes; natural rights; counter-factual variations; fact patterns; unfair arrangements; legal arrangements; unlimited powers; central government; unitary executives; jurisdictional perspectives; due process; affirmative protections; constitutional protections; separation of powers; injustice; Executive Orders; public law; public policy.

DOI: 10.1504/IJPLAP.2011.044992

International Journal of Public Law and Policy, 2011 Vol.1 No.4, pp.376 - 383

Published online: 31 Mar 2015 *

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