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

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.