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Natural Rights in a Positive World: Do Habeas Rights Extend to Non-Citizens Detained Abroad?

International Journal of Public Law and Policy, Vol. 1, p. 376, 2011

8 Pages Posted: 27 Aug 2011 Last revised: 2 Jun 2012

Peter C. LaGreca

Independent

Date Written: August 20, 2011

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-Citizen, Enemy Combatant, Detainment, Abroad, American Constitutional Law, Civil Rights, Human Rights Law, War, Conflicts, Military, Jurisprudence, Legal Theory

JEL Classification: K10, K19, K33, K40, K42, K49

Suggested Citation

LaGreca, Peter C., Natural Rights in a Positive World: Do Habeas Rights Extend to Non-Citizens Detained Abroad? (August 20, 2011). International Journal of Public Law and Policy, Vol. 1, p. 376, 2011. Available at SSRN: https://ssrn.com/abstract=1918081

Peter C. LaGreca (Contact Author)

Independent ( email )

No Address Available

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