International criminal law
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Citizenship and the Fourteenth Amendment

Yaser Esam Hamdi was born in Louisiana in 1980.  As a child he moved with his family to Saudi Arabia and by 2001, Hamdi was living in Afghanistan.  His parents were never United States citizens.

While fighting the war on terrorism, Northern Alliance soldiers captured Hamdi, who at the time of his capture was brandishing an AK-47 assault rifle.  The Alliance transferred custody of Hamdi to the United States.  Like others captured while fighting with - or giving aid and comfort to - the Taliban, Hamdi was transferred to Guantanomo Bay Naval Base in Cuba.   Military officials labeled him an enemy combatant.             

In April 2002, military authorities learned that Hamdi was an American citizen.  They transferred him to Norfolk, Virginia and then to a military brig in Charleston, South Carolina, where he was held without charged being filed against him.  He was denied access to visitors and counsel.             In June 2002, Hamdi's father filed as next-friend for a writ of habeas corpus.  The petition alleged that Hamdi was doing relief work in Afghanistan.  By the time Hamdi knew a war against terror waged, he could not escape the country.  In other words, he was at the wrong place at the wrong time.  In the petition, Hamdi's father argued that as an American citizen, Hamdi is entitled to full protection under the Bill of Rights.  The United States must file charged against Hamdi or release him.

Under our current understanding of the Fourteenth Amendment, his father was right.  As Justice Scalia wrote in Hamdi v. Rumsfeld:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.  Where the exigencies of war prevent that, the Constitution’s Suspension Clause, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.  123 S.Ct. 2633, 2261 (2004) (Scalia, J., dissenting) (emphasis added).

In "Born in the USA? Rethinking Birthright Citizenship in the Wake of 9/11" John Eastman argues that Hamdi's father, and Justice Scalia, were wrong.  Hamdi was not a citizen:

In this paper I argue that the received wisdom regarding the Citizenship Clause is incorrect, as a matter of text, historical practice, and political theory. As an original matter, mere birth on U.S. soil was alone not sufficient to confer citizenship as a matter of constitutional right. Rather, birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate, a floor for citizenship below which Congress cannot go in the exercise of its Article I power over naturalization. While Congress remains free to offer citizenship to persons who have no constitutional entitlement to citizenship, it has not done so. Mere birth to foreign nationals who happen to be visiting the United States at the time, as with the case of Hamdi the Taliban, should not result in citizenship. Because court rulings to the contrary have rested on a flawed understanding of the Citizenship Clause, those rulings should be revisited. Moreover, the statutory grant of citizenship conferred by Congress, which precisely tracks the language of the Fourteenth Amendment, should itself be re-interpreted in accord with the original understanding of the Citizenship Clause. In the wake of 9/11, now would be a good time to do so.

You can read Mr. Eastman's iconoclastic article here.