I've heard people say the US constitution lays out limits of what the US government can do, as opposed to rights of US citizens.
So, if the US government wants to hold you in detention, they have to tell you why, not because you have that 'right', but because they are bound by law to do so in all circumstances irrespective of what passport you're carrying.
Again, I've only heard this before -- I'm not at all a legal scholar. Can anyone confirm or deny this interpretation and possibly give more reading material around it?
The first ten amendments are literally called the "Bill of Rights". It limits what the government can do because doing so would be in opposition to the rights of US citizens.
"Rights of citizens" and "limits of government" are two sides to the same coin.
Edit: should have used “person” rather than “citizen”. I was mirroring the verbiage used by the OP and should have been clearer. E.g. non-citizens are still granted Miranda rights
This question has been debated and discussed often, especially since the “wars” on drugs and terror (with similar results). The truth is that the constitution protects all people in MOST cases, but not all. (0) It’s a complex answer and, as someone else mentioned, things change by case law (court decisions) all the time.
Note that if someone is being charged as some type of combatant or intelligence operative, they will have very few “rights” and apparently can be held for a very long time (see Gitmo).
"Citizen" is never mentioned in the Bill of Rights. It's all "The Government shall make no law" or "the people" or "the accused" which apply equally to any other person within the United States. Even undocumented immigrants are protected by the Bill of Rights and legal non-citizen residents certainly are.
I think /u/ReptileMan is talking more about situations like border crossings, where the Border Patrol claims some rights don't apply because you haven't been granted entry yet, even though you're technically on US soil.
I think it’s a bit more complicated than that. I think the issue is whether those rights apply to non-citizens outside the border.
I think it’s generally well established that rights travel abroad with citizens. However, it’s less clear if they apply abroad (or even to U.S. territories) to non-citizens. E.g. United States v. Verdugo-Urquidez claims it does not apply to non-citizens who do not have a voluntary association with the U.S.
Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the border when dealing with the U.S. government. I was not implying other governments must recognize U.S. Constitutional rights when dealing with U.S. citizens.
Interestingly enough, the phrasing in the article implies that the Justice Department is arguing that speech made outside the US is not protected, not simply speech made by non-citizens.
I would be incredibly surprised if that argument held up.
Heck, there is a question about whether the Bill of Rights even makes it to the border, given the existence of border checkpoints as much as 100 miles from said border.
But it's not framed as "rights of citizens" in the actual wording of the Constitution (it was intended to be, yes, but that's another topic).
For instance, the first amendment doesn't say "All citizens have the right to...", but rather says "Congress shall make no law..." Subtle difference, but important.
Similarly, other parts of the bill of rights refers to "people", not just citizens. Generally, for issues that happen entirely within the United States, it's interpreted to really mean "people". So if you're in the US on a work visa and get arrested, you are allowed to plead the 5th and it's supposed to be honored.
It gets weirder when events aren't entirely contained in the US. If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If so, does that come from my passport, or from the fact that the US government just isn't allowed to do that to anyone, period?
>If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution?
If you are a citizen, yes. If you are not, there’s at least some precedent that the answer is no.
I’m curious to your perspective on the subtle difference in wording. What does this difference impart legally? To me it feels like a distinction without a difference
Edit: after having my morning coffee, I realized an important distinction is when the U.S. citizen is considered a combatant. See Anwar al-Awlaki, where the government stated, "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action", although it looks like the specific details about their opinions on his 4th amendment rights were not clear due to redaction. [1]
Someone has linked to a really nice legal review somewhere up in the comments, so my question is mostly answered now... but to answer your question about what I see as a difference in wording above:
If the law said "All citizens have the right to express their opinion" then a law saying "Non-citizens expressing their opinions will be punished" is OK.
If, on the other hand, the law said "Congress will not make any laws restricting the expressing of opinions" (closer in wording to what we have) then a law saying "Non-citizens expressing their opinions will be punished" is no longer OK.
Thanks for clarifying. In addition to your point, it sounds to me that the clarification is already built into the specific wording, since the Bill of Rights doesn't use the word "citizen" as you previously stated.
In general, the individual liberties set out in the Bill of Rights apply broadly to all people, in all their interactions with the US government. The Bill of Rights does not use the word "citizen," but does in several places use the broader term "person." For example,
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;
It also uses the phrase, "the people." For example, in the 4th Amendment,
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the case of the 1st Amendment, which concerns freedom of speech/religion/the press, it appears to be a general prohibition on government interference with freedom of speech, with no specification of whose freedom of speech is meant:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
They are inalienable rights first. It has nothing to do with citizenship. If I'm on US soil then I have (roughly) the same right as a US citizen. That's what so great about the Bill of Rights. (note there some specific clause for US citizens but they are labelled as such eg US president etc)
It should also be noted that historically these were restrictions on the federal government only (see Barron v Baltimore). This is a pretty important distinction since states were not limited here. In practice most states have their own constitution which generally follows the federal constitution to some extent.
Of course after the 14th Amendment was passed the legal theory of selective incorporation under the Due Process clause was developed in the early 20th century. Interestingly we are still in the process of incorporating the first eight amendments to the states 150 years later; e.g. the second amendment is the most recently incorporated amendment, the third still hasn't been incorporated though.
(Sorry, no links, but this is fairly uncontroversial US history:)
There was a big debate around the bill of rights. Proponents felt it was essential, because otherwise the government would violate those rights. Opponents either didn’t feel this was a justified fear, actively wanted more state power, or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people.
That last objection was the basis for the Tenth Amendment.
That said, in practice, what the government can and can’t do is decided not by the text of the Constitution but by the string of precedents that control its legal interpretation.
In other words, reading the Constitution gives you at best a very basic intuition of how the US political system works, and this intuition will often be very very wrong.
So, you’re theoretically right, but it doesn’t affect the practical reality on the ground even in principle.
While true, if the constitution is not fulfilled in the eyes of the citizens, it can just flush all those legal governmental proceedings down the toilet, including the whole body of government. Some even argue it to be their duty.
That is the basis of every democracy. Consent of the governed and all that.
<tin foil on> Supposedly democratic governments learned a few tricks on how they could manipulate the opinions of the governed to avoid being thrown out. Some fear works. Wars, too (that is, when at war people will cut their government extra slack), so they claim wars on {drugs,terrorism,...}.
They also leverage mass media. This is not a relationship of control, just symbiosis: fear is still pretty easy to sell. <tin foil off>
>or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people.
Which is the situation we're in. If you don't have a positively asserted specific legal right, it doesn't otherwise exist, except in how limited your behaviors are by law.
That’s not an original source to prove the claim in the headline. It’s someone making a claim that the DoJ is making that claim. (A video of “B says that A said” is not the same as an original video or text from A, particularly when A and B are adversaries.)
He is an original source, as a person who saw the filings. Perhaps not unbiased though. And contra your statement, there is no reason to suspect that the DoJ's self-description of their filings would be in any way more accurate. (Do you trust the student's description of his essay, or the teacher's evaluation of it?)
The DoJ filing is an original source for the argument. The video above is much closer to hearsay than to an original source. I would no more (and no less) accept hearsay as original testimony from counsel on either side of the case.
I came to comment exactly the same thing. Someone who murdered a UK citizen then fled justice has been refused extradition by the USA, but the UK is supposed to extradite Assange?
The parent is probably referring to Brexit, soon the UK will need to make a new trade deal with the US. Until that's done I doubt that we will see them say "no" to the US very often.
UK desperately needs a trade deal with the US. In order for them to have regulatory divergence from the EU there will have to leave on WTO terms. Without US opening up as a market UK will struggle to avoid a long term economic recession.
And as we know Trump doesn't look at trade in isolation. He looks at the overall relationship like a child would i.e. "are they doing what I want or not".
So there is zero chance UK will do anything this year that isn't to Trump's liking.
> I'm curious what the UK could provide the US that would be much benefit for the US.
Well the US imported $67 billion worth of goods alone from the UK in 2019. One of the six or seven highest figures among US trade partners; slightly higher than France.
US services imports from the UK are typically around $40 to $50 billion.
So, $110 +/- billion in total imports from the UK. A considerable sum (more so for them of course).
The UK is also the largest single foreign investor into the US, representing 15% of all foreign direct investment. As individual countries go, the US is the largest importer of UK goods and services.
They're the fourth largest export market for the US. It's a good economic relationship to maintain, clearly.
No it doesn't. The UK has never had a trade deal with the US before and is doing fine. Lots of countries don't have trade deals with the US or the EU and also do fine.
Please don't hype this up. Trade deals aren't that powerful.
The US, like other countries, do not want to set 'bad' precedents on diplomatic immunity. Afaik she had diplomatic immunity and despite the speeches on both sides the US will never extradite her because of the precedent that would set.
In addition, in her case I suspect they also want to avoid any disclosure of the activities of her husband.
The point actually also (or especially) applies in the UK: If she did have diplomatic immunity then what is the basis to prosecute (or even just sue) her in the UK?
Procecuting a foreign citizen that helped uncover war crimes is by all measures of a sane mind a much worse precedent. And that even while accounting for the "what goes around comes around"-rules of diplomacy.
Both the Foreign Office and the US State Department appeared to accept that she no longer had diplomatic immunity, and she wasn't a registered diplomat anyway -- she was the Intelligence officer's wife. Or at least that's what the Foreign Secretary was claiming at the tail end of last year. The surprise is either of them getting immunity for an airbase intelligence role outside London in the first place. I've seen several reports questioning whether the immunity was valid at all.
But having returned to the USA there is no longer any immunity. A crime is still there to be investigated and prosecuted, an extradition could proceed.
Additionally US-UK extradition agreements both under Thatcher and later under Blair have been notable for their imbalance, but that seems rather academic here.
They said that diplomatic immunity was no longer relevant. Which was a way to tell us that it did not matter anymore because she was in the US and the US would not extradite her.
> But having returned to the USA there is no longer any immunity. An extradition could proceed.
They are claiming that for political reasons. That way it is up to the US to refuse extradition, which they obviously and predictably have, and be the 'bad guys'.
The reality is that both governments knew full well from the start that nothing would happen to her the instant she left the UK. The reality is not popular with British public opinion so they are posturing.
Which don't have everyone running on diplomatic plates, or actual diplomats.
For a diplomatic cover, usually something for missions in unfriendly and hostile states, (shades of Cold War le Carré here) it would be for staff at the embassy -- which is in London. So the airbase would have to be considered a branch or part of the London embassy under the Vienna Convention. Yet Menwith Hill and Croughton etc are supposedly RAF bases militarily shared under NATO deals.
Hence all the controversy currently coming out of the woodwork, and numerous articles quoting QCs and ministers disputing the validity at all, or considering it abuse of Vienna, including the exploration piece I linked above. IANAL. :)
Firstly she was not a diplomat so it seems difficult to claim diplomatic immunity.
Secondly, the US have already established a precedent that seems very relevant to this where they claimed that a foreign national did not have diplomatic immunity relating to a much less serious traffic offense https://autos.yahoo.com/owner-of-beverly-hills-laferrari-doe...
Diplomatic immunity typically covers families. The point of immunity is that a diplomat (or their family or staff) can't be arrested and threatened with the law in order to influence the diplomatic process.
Thus it is really a matter of whether her husband was legitimately working as someone with immunity.
Everyone says no. But if it's something like the CIA involved, event the UK gov't may only be going through motions of outrage for appearances and not trying to actually win an extradition.
I think that you don't fully understand the concept underlying diplomatic immunity. Diplomatic immunity exists to ensure that countries cannot use the local legal system when no crime is committed in order to put pressure on the diplomat or his family, not to go away when a real crime is committed.
A lot of countries will wave diplomatic immunity when a real crime is committed or will prosecute the diplomat in their local legal system. The only countries refusing to do so are rogue or third world countries.
"The only countries refusing to do so are rogue or third world countries."
I wish people consult at least wikipedia when making claim. In this particular area "good" US looks worse than "bad" Russia which at least criminally charged the offender once he had been sent back to Russia.
The US does stand up for its citizens which is a nice quality but on the other hand it goes overboard in many cases.
> If you do something that is a crime usually sentenced to >1 year in both countries, then diplomatic immunity does not apply.
That's not the case. If it was then bypassing the Vienna Convention would be straightforward.
In the UK foreign diplomats commonly avoid prosecution for serious crimes because they are protected if their home country refuses to waive immunity.
> Also to have diplomatic immunity you must be an accredited diplomat agreed by the host country before entering. She was not.
It does not matter as family members are covered. What matters is whether her husband had diplomatic immunity.
In any case, diplomatic immunity is a moot point at this stage since she was quickly 'exfiltrated' and the US have made clear that they won't send her back.
In this case, "because they want Assange." If one country refuses to play ball in extradition cooperation, another can exercise their own national authority to compel them with tit-for-tat. Another nation is one of the few institutions powerful enough to do so.
It's one of the few advantages of having multiple independent and equally-accountable-in-the-law countries.
I don't think the UK government would do that with anything short of a death penalty possibility and that's not on the table in any way with this trial. They won't risk their extradition treaty with the USA over him.
It's bizarre to me that the US constitution's philosophical basis is that it does not create rights but only recognizes natural or God-given rights that people already have, yet the US government doesn't recognize those rights for anyone but its own citizens.
My (limited) understanding is that the Constitution does extend to non-citizens in many circumstances. Those are the ones that state rights of a "person" rather than "citizen".
E.g., "nor shall any State deprive any person of life, liberty, or property, without due process of law"
It is largely an untested theory. The USG asserts that his 1A protections do not apply because he is not a USC and speech was outside the US. That begs the question of whether the court then has jurisdiction. It is a good rule of thumb that if you are being tried in the US, the constitution applies to you.
I truly hope there will be more leaks in the future. So far, we're seeing the tip of the ice-berg - but I predict that if Assange dies without justice, there are going to be repercussions. There are a lot of angry people out there, sitting on a goldmine of information, just waiting to see how this proceeds. I can't imagine a scenario where Wikileaks is pounded into the ground, and the rest of the world goes quiet - sure, mainstream mind control being what it is, we may forget Assange soon enough.
But the truth wants to be free, and when crimes against humanity are committed at such scale as the Coalition is capable, there has to be more on the horizon.
One wonders what the AirWars folks are thinking about all of this. I sure hope groups like these, as well as Wikileaks, is going to survive this onslaught of injustice.
I'm wondering at what point the Australian Government might actually stand up in the defense of one of it's citizens against potential (and maybe even actual) human rights violations.
Australian politicians very much like to talk about 'protecting Australians' when it comes to ISP data retention and laws against encryption, but they tend to go entirely missing in the kind of situations where they are actually needed on behalf of a citizen that, in this case, needs potentially life-saving protection.
Not going to happen. They will bow to the needs of the USA, as Brazil has now done in its prosecution of Greenwald.
Wikileaks is sitting on a ton of info about the ADF's war crimes as well, and the Australian government want nothing more than to prevent the intense scrutiny of its proud fighting force by the worlds' people that would result from such a leak. They are fighting tooth and nail to ensure that Wikileaks is invalidated completely in the minds of the Australian public, who generally have very little temerity when it comes to criticism of their armed forces actions.
EDIT: Besides which, there is Australia's heinous Sedition law, which is being floated as the means by which Assange would be silenced were he to land back in Australias territory.
.. and as we can see from this token investigation, the media in Australia is also under attack for its own investigations of ADF war crimes, a situation for which Australia has been lambasted by international journalistic organisations - who are strangely silent on Assange's treatment.
> "According to WikiLeaks, witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States.”
Isn’t this another way of saying US legal protections don’t apply to people who aren’t American, and aren’t physically present in America (or under its jurisdiction)? I feel like this would be the case for other countries, too: free speech laws that protect Americans in America wouldn’t protect them in China or Australia or Kenya, and Kenyans, Australians and Chinese citizens outside of the US aren’t protected by US law, either.
If US law doesn't grant protection to Assange because he's neither a US citizen nor physically present in America, then it also shouldn't be possible to prosecute him for things he did while neither a US citizen nor physically present in America.
This is something I've always found confusing about the entire situation - Assange is an Australian citizen who did something in Iceland, yet the USA is applying its laws to him. Granted he obtained US intelligence from a US citizen, but how is this his problem? I find it hard to understand how this is possible.
Not to defend US justice system, but Assange allegedly jeopardized US national security, which is in the interest of US to protect.
If Assange was in a country that had no treaties with US, say for example Iran, he could avoid extradition easily, not so easily if there are strong agreements on both parties like UK and US have.
There are reasons why he wasn't in Iran or Afghanistan, one of them is that his life would be in more danger there than in any western court.
If Assange was extradited from Sweden, the country he escaped from, which is still an European country, he had the certainty that he could not be sentenced to the death penalty, that's a non-negotiable option if US ask for extradition from EU. UK will not be EU anymore starting from 1st of February 2020.
What you have to remember about big public cases like these is that it's often something very specific that someone is being tried for.
In the Assange case the charge is "conspiracy to commit computer intrusion." The US is asking the UK to be a friend and arrest this person and then send them to a place where the laws apply so they can be punished for what they are accusing him of:
"Prosecutors accused Assange of conspiring with Chelsea Manning, a U.S. Army intelligence analyst in Iraq in 2010, to crack a Defense Department computer password for accessing a vast trove of classified U.S. military and diplomatic material that subsequently was disclosed through WikiLeaks."
So just think of it like this: The US, UK and Australia are all "friends." The US thinks someone from Australia who was living in the UK did something that the US defined as bad. The US wants him to face trial for that and the only place to do that is in the US, so can their friends in the UK please send him along.
Extend that line of thinking to the internet.
If I post a message on a forum, and that server is not located on USA soil then it can easily be argued that the speech did not occur in the US. 'From whence the voice was heard.'
HN appears to be primarily populated with like-minded individuals; so of course we will all point out the technical inaccuracies of my point, and will quickly follow-up with 'That won't happen here'. The same righteous indignation a few years ago would occur if anybody would have suggested that kids were separated from their families and forced into cages when people entered at the southern border .
This is not the era where kind, just, reasonable people are making or enforcing policies.
Wait, hold on a minute here, I was assured that the one thing Assange should have done years ago was turn himself over to the authorities and let justice take his course. Can someone explain to me how things could have diverged so badly from the expected path?
You were lied to - Assange is in the target of a large, highly profitable military-industrial-complex. Actual justice is not on the table; anyone paying attention has known this for years.
> Assange is in the target of a large, highly profitable military-industrial-complex
Woah there, went full tinfoil hat on us for a moment.
Agree, their intentions are probably to set an example and will act aggressively on Assange as much as possible, but they are still bound by their laws.. And in turn; 'justice'.
Aren't we reading about the US government denying that he has 1st amendment rights when the US government is restricted from denying those rights by the 1st amendment? The amendment doesn't specify US citizens get a positive right, it limits the government itself
This is what I find hilarious about the sorts of comments you're replying to. It doesn't make sense unless you refuse to think about it and apply a modicum of consistent logic to it.
If Assange had gone to Sweden in 2010, and been found guilty and gone to prison, he might have finished his sentence before the USA officially decided to try him with their 2017 (?) indictment.
Even if he was still in prison, Sweden is at least as capable of resisting USA extradition requests as the UK.
Even if he wasn’t in prison/an embassy (either not guilty or guilty and released after doing time), the indictment would’ve happened anyway, and led to another extradition attempt anyway wherever he was — including, I recon, if he went straight from Sweden to Ecuador, given that Ecuador did remove his asylum.
Either way, his conditions would’ve been better between them and now, but also the situation right now would be the same (except for the time spent in a UK prison for breach of bail, and held by the authorities while waiting for an extradition hearing, and the loss of bail bond money from his supporters) except that either he would be exonerated from sexual assault charges or a dangerous narcissistic rapist would’ve been punished with a prison sentence rather than allowed to present themselves as a victim [delete as appropriate].
If he had been tried in Sweden in 2010, and there were no political machinations, he'd have been out probably by 2013-2015. Sentences in Sweden are short across the board - you can find even convictions for violent rapes in Sweden that results in sentences no longer than that.
But that rests on a lot of assumptions, such as that there wouldn't have been an earlier US indictment if he'd been conveniently accessible.
And of course it rests on the assumption that Sweden would have been as "capable of resisting" extradition. Which is a big question - one of the results of "Cablegate" was that we know that years after the Swedish government found out Swedish police was complicit in blatantly illegal rendition of two political asylum seekers who were afterwards tortured after being handed over to the government they were fleeing, the US was chastised secretly by the Swedish government after Swedish military intelligence caught Swedes assisting illegal rendition flights via Sweden. Nobody were ever tried for either incident. So it's not clear whether or not Sweden is even capable of stopping the US from unilaterally doing as it pleases, before even consider whether Sweden would want to.
I'm inclined to think the oddities in the Swedish case was down to domestic Swedish issues rather than US involvement, but at the same time I know for my part if I had feared US prosecution, I'd much rather stay in the UK than go to Sweden.
Hm. Well, I view the current extradition process as evidence the UK isn’t going to try very hard to stop him going to the USA: If the UK authorities did have that intent, I would’ve expected them to inform Sweden about the end of Assange’s asylum and given them a chance to reopen their case before the USA got to start a new one, but the complainants were reportedly surprised by the events.
Then again, I left the UK because I no longer trust the UK government to do good, so naturally I must be unusual in my belief about the UK…
Sweden does not offer habeus corpus to detainees who are under investigation but have not been charged. This is the category in which they placed Assange.
The Swedish desire to maneuver Assange into a black hole is self-evident in its refusal to interview Assange by telephone. Once that was done they would have had to charge him and present their evidence to the public under Swedish law.
As someone whose legal arguments have been drastically misunderstood by papers of much higher reputation (looking at you, WaPo), I'm skeptical of the accuracy of the claim.
Well, that certainly undermines the credibility of the Dept. of Justice's previous claims that Assange would receive a fair trial. If Assange doesn't have first amendment rights, what other inalienable, constitutional human rights doesn't he have?
If the US wants to apply US law globally then US constitutional rights should apply to you if the US wants to prosecute you. I imagine if this goes forward it will end up at the US Supreme Court. Also if Assange is on US soil at the time of prosecution then the 1st amendment should apply and it should be retroactive.
Isn’t this a slippery slope? Could the argument be made that anyone who isn’t a U.S. citizen isn’t protected by the constitution then? Not a citizen, you can’t say what you want when you want. Not a citizen you don’t get the right to due process. Etc.
The US just assassinated a high ranking military official of a nation we arent at war with openly without even attempting it covertly. It would seem that they are already well invested in carrying out justice against foreign nationals as they see fit
"Between December 19 and January 13, lawyers had just two hours to brief Assange and take instruction. They were granted one more hour to confer on January 13, when Assange last appeared in court."
IANAL, but that doesn't sound normal to me, particularly for such a case.
The Bill of Rights is descriptive of some of the natural rights of men, not prescriptive. The reason it exists at all was to satisfy people who quite rightly thought that without the extra legal insulation a malicious Congress or government would trample all over them.
Go read the 1st Amendment, it’s right here:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first five words are “Congress shall make no law”, or basically, this isn’t a grant given to the people, this is a restriction on the type of laws Congress is allowed to pass, and if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist!
> if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist
Yet federal health workers can be legally bound to secrecy.
The Bill of Rights is in natural conflict with itself. My rights restrict your freedoms and vice versa. This is a complicated dance that has been extensively litigated.
Federal health workers are civil servants. The restrictions on their rights are of an employer-employee variety, or of a contractural variety. Nobody put a gun to their head and told them to enter the civil service, and they can choose to leave it.
Again, go read the Bill of Rights. They are restrictions on the national government’s ability to legislate or take certain actions against you, not a grant of rights doled out to satisfy you. “You have the freedom to speak and of the press, etc.” is far less powerful and meaningful than “Congress shall make no law...”
> The restrictions on their rights are of an employer-employee variety
An arrangement defined and described by laws Congress wrote. Laws which restrict the free speech of Americans.
I agree that the negative rights of the American Constitution are far superior to the positive-rights philosophy of e.g. the UN Declaration on Human Rights, which is unenforceable ambiguous. But these rights are balanced against each other in a complex way.
It is entirely within the scope of a government to enact restrictions on the people acting on behalf of the government with government power. This is less of a contradiction than you seem to think it is. In fact, it is the point of the Constitution to restrict the government!
Even so, Congress still doesn’t have the power to prevent government employees from speaking out politically, or choosing their own church or choosing not to participate in church, or from operating a printing press that criticizes Congress, or from publishing a blog criticizing the Senators from their home State. The restrictions upon government employees are entirely within the scope of their service to the government, and no further.
Or to put it another way, since Congress shall pass no law restricting the establishment of a religion, they can’t mandate civil servants in the Department of Agriculture attend a Catholic Church while those in the Department of Justice must be of a Protestant persuasion.
You’ve made a solid observation, and I don’t have a solid response off hand.
It’s entirely possible the penalties applied by HIPAA could fall within the boundaries of what is and what isn’t Constitutional, but it’s also possible it is unconstitutional, and unconstitutional laws get struck down all the time when they’re thoroughly challenged, but in our legal system, they have to be challenged first, meaning someone has to make the case.
Most of the HIPAA restrictions can be waived by the patient, i.e. you can contract around it, so it's really more about contractual defaults and consent than censorship.
But that's obviously still a slippery slope. You get the same sort of scenario with classified documents which are at the same time evidence of government misconduct. Everyone with access to the documents agreed not to disclose them, which means there is no one who can reveal the misconduct to the public without violating that agreement.
They can't choose tobe exempt from laws criminalizing the disclosure of classified documents. It is substantially more than just an employer relationship.
It is also worth repeating, from time to time, the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Sorry, but you are wrong. But that's ok, its a common misconception about constitutional law. The first amendment does carry those restrictions, but it is not the only law affecting those rights. Specifically, the "privileges and immunities" clause from the 14th amendment has extended the 1st amendment to apply to the rights of citizens and has been interpreted as such by the Supreme Court in various cases.
JA is not a US Citizen, and I admit I do not know where that lands him constitutionally speaking.
None of that really applies to this situation. It was that originally it wasn't clear if the 1st amendment applied to state governments as well, but the interpretations of that pre 14th amendment were that the state governments could restrict what the first amendment guarantees, and post 14th amendment state governments can't restrict the 1st amendment for citizens.
Assange is being charged with civilian, federal charges, so the citizens only interpretation doesn't really apply.
When I tried to find out what "Privileges and Immunities" meant, IIRC, the Supreme Court had, within a few years after passage of the 14th amendment, defined it narrowly to include the right to travel from place to place, the right to sail the navigable waters of the U.S., and not much else. Has that changed?
It's also worth adding that this wording makes it extend beyond the US borders. If the US Constitution granted rights to individuals, it would only apply to individuals under the US Constitution. Instead, it makes a blanket assumption that the freedom of speech exists, and that while other governments may restrict it, Congress may not. For example, overseas funding for HIV/AIDS may not be conditional on recipients having a strict anti-prostitution policy, as that would violate the free speech of the recipients[1].
We're torturing and holding people without charges for decades and even their entire lifetimes. We routinely ignore every single amendment and clause of the constitution when it's convenient for the government. I think what the constitution says is irrelevant at this point. The government will do what it wants irrespective of the constitution. The only dissonance here is that some people still insist on calling the US a free, democratic country. Not sure it ever really was in its history, but it sure as hell isn't now. It would help us all if we stopped this delusion.
That’s a separate ball of wax, but we do hold people captured in war in fairly inhumane conditions. I don’t agree with this policy, but it’s important to understand where the lines are being drawn.
It’s also important to remember that military tribunals are not nor have they ever been Article III courts, nor do the same standards apply in the case of war that would apply in civil or criminal cases.
Sure, but we've been at war now for 19 years or so at least (2001, possibly longer). If the time of war is every single day, then there is no time of war and the government is just using that as an excuse to justify its inhumanity. In fact, if you want to name years we haven't been at war since WWII, you're not going to get many years. But I see what you're getting at: when we're at war, the constitution is suspended. I just go a tiny step further and say the constitution has been permanently suspended. There is no difference between those positions currently, considering we are in a permanent state of war and have been so for almost two decades.
It's fascinatingly broad...how can Congress make a law, for instance, restricting someone reading aloud top secret classified documents? I suppose they had their own hand-wringing with it, since they shortly after passed the sedition act, which was also let to expire.
> witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States.
Wouldn't this logic extend to all the other amendments as well? Meaning Assange has no rights, at which points, why even bother with a trial? Just execute him as soon as he touches US soil.
Of course, this logic could be applied to all foreign nationals then.
My only question is, if US rights don't apply to foreign nationals, how come legal restrictions do apply? Can the executive branch just arbitrarily decide which laws apply to a foreign national?
Having dealt with this issue while overseas and having done some previous searching, the question of whether the Constitution applies to Non-Citizens residing outside of the US is unclear in law.
Note, the distinction here: Someone who is residing outside of the US.
"Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States"
Julian Assange is an Australian Citizen who was residing in the United Kingdom and was not being held by agents of the US Government. It's unclear under what precedent he would enjoy protections under the US Constitution.
There's a strong Constitutional construction argument that argues the Constitution applies to all people regardless of citizenship if the government intends to put legal binding upon them and we are not in a state of war.
But I believe the US executive branch has not ascribed to that legal philosophy since at least George W. Bush's presidency.
Agreed, many of the rights described were once considered the "natural" rights of man, not granted, and I thought the language clearly demonstrated that main concern was with restricting the power of government from denying those rights.
Not everybody believes in rights that are not granted, so I think the view that these rights only applied to citizens was always around, but yes, 9/11 did provide added motivation to deny rights to non-citizens.
I think that's a good argument, but I'm not a lawyer, I just know that the Rules Of Engagement for military members extended the spirit of the constitution, to how we were supposed to interact with the local population in Iraq.
In Assange's case though I don't see how the First Amendment will help here, as the charge is "Conspiracy to commit Computer Intrusion." I don't think the district court is making a case about whether Assange has the right to publish data freely.
Isn't it contradictory to maintain that a non-US citizen outside the country does not have rights under the US Constitution, but can be subject to US law?
The issue at hand is how you define "subject to US law." It's unclear so far what kind of boundaries you can put around that because in the general case, this is discussing what the US Government can prevent you from doing.
So for example if a Chinese citizen is arrested in Beijing by the Chinese Police for protesting in Tienanmen square, nobody would seriously claim that the US Constitution protects their speech. - So that covers the case where there is no protection from the US Constitution because the US doesn't have jurisdiction there.
How about an example where a Bolivian Citizen starts a clinic in Bolivia and then shares all of their patient's data with anyone who wants it within the borders of Bolivia. That is a clear breach of HIPAA rules but again because the US does not have jurisdiction, then nobody would seriously claim that the US has anything to say about this situation.
Lastly, assume the case where a Norwegian Citizen sitting in Oslo accesses bank accounts of US citizens and transfers money to his account that is in Switzerland without their consent. What crimes is this person committing and who has jurisdiction to enforce them?
That is unclear, but I think it comes down to how reciprocal non-US countries are when it comes to what laws should be enforced by one country and the citizens of another.
No judge will support that, not even cronies put in by Trump. The only way they would get anything even close is to have him declared an enemy combatant and that's not going to happen.
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[ 3.3 ms ] story [ 200 ms ] threadSo, if the US government wants to hold you in detention, they have to tell you why, not because you have that 'right', but because they are bound by law to do so in all circumstances irrespective of what passport you're carrying.
Again, I've only heard this before -- I'm not at all a legal scholar. Can anyone confirm or deny this interpretation and possibly give more reading material around it?
"Rights of citizens" and "limits of government" are two sides to the same coin.
Edit: should have used “person” rather than “citizen”. I was mirroring the verbiage used by the OP and should have been clearer. E.g. non-citizens are still granted Miranda rights
Note that if someone is being charged as some type of combatant or intelligence operative, they will have very few “rights” and apparently can be held for a very long time (see Gitmo).
0. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?a...
There are also questions about scenarios like https://en.wikipedia.org/wiki/Anwar_al-Awlaki, where a US citizen was executed by the US without trial while overseas.
I think it’s generally well established that rights travel abroad with citizens. However, it’s less clear if they apply abroad (or even to U.S. territories) to non-citizens. E.g. United States v. Verdugo-Urquidez claims it does not apply to non-citizens who do not have a voluntary association with the U.S.
Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the border when dealing with the U.S. government. I was not implying other governments must recognize U.S. Constitutional rights when dealing with U.S. citizens.
I would be incredibly surprised if that argument held up.
https://www.aclu.org/cases/al-aulaqi-v-obama-constitutional-...
https://www.aclu.org/cases/al-aulaqi-v-panetta-constitutiona...
https://www.aclu.org/other/constitution-100-mile-border-zone
For instance, the first amendment doesn't say "All citizens have the right to...", but rather says "Congress shall make no law..." Subtle difference, but important.
Similarly, other parts of the bill of rights refers to "people", not just citizens. Generally, for issues that happen entirely within the United States, it's interpreted to really mean "people". So if you're in the US on a work visa and get arrested, you are allowed to plead the 5th and it's supposed to be honored.
It gets weirder when events aren't entirely contained in the US. If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If so, does that come from my passport, or from the fact that the US government just isn't allowed to do that to anyone, period?
That's more what I'm asking.
If you are a citizen, yes. If you are not, there’s at least some precedent that the answer is no.
I’m curious to your perspective on the subtle difference in wording. What does this difference impart legally? To me it feels like a distinction without a difference
Edit: after having my morning coffee, I realized an important distinction is when the U.S. citizen is considered a combatant. See Anwar al-Awlaki, where the government stated, "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action", although it looks like the specific details about their opinions on his 4th amendment rights were not clear due to redaction. [1]
[1] https://www.washingtonpost.com/world/national-security/legal...
If the law said "All citizens have the right to express their opinion" then a law saying "Non-citizens expressing their opinions will be punished" is OK.
If, on the other hand, the law said "Congress will not make any laws restricting the expressing of opinions" (closer in wording to what we have) then a law saying "Non-citizens expressing their opinions will be punished" is no longer OK.
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;
It also uses the phrase, "the people." For example, in the 4th Amendment,
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the case of the 1st Amendment, which concerns freedom of speech/religion/the press, it appears to be a general prohibition on government interference with freedom of speech, with no specification of whose freedom of speech is meant:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Of course after the 14th Amendment was passed the legal theory of selective incorporation under the Due Process clause was developed in the early 20th century. Interestingly we are still in the process of incorporating the first eight amendments to the states 150 years later; e.g. the second amendment is the most recently incorporated amendment, the third still hasn't been incorporated though.
There was a big debate around the bill of rights. Proponents felt it was essential, because otherwise the government would violate those rights. Opponents either didn’t feel this was a justified fear, actively wanted more state power, or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people.
That last objection was the basis for the Tenth Amendment.
That said, in practice, what the government can and can’t do is decided not by the text of the Constitution but by the string of precedents that control its legal interpretation.
In other words, reading the Constitution gives you at best a very basic intuition of how the US political system works, and this intuition will often be very very wrong.
So, you’re theoretically right, but it doesn’t affect the practical reality on the ground even in principle.
That is the basis of every democracy. Consent of the governed and all that.
They also leverage mass media. This is not a relationship of control, just symbiosis: fear is still pretty easy to sell. <tin foil off>
Which is the situation we're in. If you don't have a positively asserted specific legal right, it doesn't otherwise exist, except in how limited your behaviors are by law.
"The sky is the limit" vs "the limit is the sky"
https://www.youtube.com/watch?v=YwK1tPdaHkY
Come on.
And as we know Trump doesn't look at trade in isolation. He looks at the overall relationship like a child would i.e. "are they doing what I want or not".
So there is zero chance UK will do anything this year that isn't to Trump's liking.
Tea ?
The NHS might be on the table in the form of medicinal licencing within the UK or something, but I'm not sure what you mean..
https://www.uschamber.com/international/europe/us-uk-busines...
Well the US imported $67 billion worth of goods alone from the UK in 2019. One of the six or seven highest figures among US trade partners; slightly higher than France.
US services imports from the UK are typically around $40 to $50 billion.
So, $110 +/- billion in total imports from the UK. A considerable sum (more so for them of course).
The UK is also the largest single foreign investor into the US, representing 15% of all foreign direct investment. As individual countries go, the US is the largest importer of UK goods and services.
They're the fourth largest export market for the US. It's a good economic relationship to maintain, clearly.
Please don't hype this up. Trade deals aren't that powerful.
In addition, in her case I suspect they also want to avoid any disclosure of the activities of her husband.
The point actually also (or especially) applies in the UK: If she did have diplomatic immunity then what is the basis to prosecute (or even just sue) her in the UK?
But having returned to the USA there is no longer any immunity. A crime is still there to be investigated and prosecuted, an extradition could proceed.
Additionally US-UK extradition agreements both under Thatcher and later under Blair have been notable for their imbalance, but that seems rather academic here.
A balanced discussion of the issues underlying: https://www.diplomacy.edu/blog/sacoolas-affair-diplomatic-im...
> But having returned to the USA there is no longer any immunity. An extradition could proceed.
They are claiming that for political reasons. That way it is up to the US to refuse extradition, which they obviously and predictably have, and be the 'bad guys'.
The reality is that both governments knew full well from the start that nothing would happen to her the instant she left the UK. The reality is not popular with British public opinion so they are posturing.
There are lots of US bases outside London that conduct US intelligence gathering - e.g RAF Menwith Hill.
For a diplomatic cover, usually something for missions in unfriendly and hostile states, (shades of Cold War le Carré here) it would be for staff at the embassy -- which is in London. So the airbase would have to be considered a branch or part of the London embassy under the Vienna Convention. Yet Menwith Hill and Croughton etc are supposedly RAF bases militarily shared under NATO deals.
Hence all the controversy currently coming out of the woodwork, and numerous articles quoting QCs and ministers disputing the validity at all, or considering it abuse of Vienna, including the exploration piece I linked above. IANAL. :)
Secondly, the US have already established a precedent that seems very relevant to this where they claimed that a foreign national did not have diplomatic immunity relating to a much less serious traffic offense https://autos.yahoo.com/owner-of-beverly-hills-laferrari-doe...
Thus it is really a matter of whether her husband was legitimately working as someone with immunity.
Everyone says no. But if it's something like the CIA involved, event the UK gov't may only be going through motions of outrage for appearances and not trying to actually win an extradition.
The U.S. has failed to waive diplomatic immunity in a number of reckless/drunk driving cases.
https://en.wikipedia.org/wiki/Diplomatic_immunity#Vehicular_...
I wish people consult at least wikipedia when making claim. In this particular area "good" US looks worse than "bad" Russia which at least criminally charged the offender once he had been sent back to Russia.
The US does stand up for its citizens which is a nice quality but on the other hand it goes overboard in many cases.
If you do something that is a crime usually sentenced to >1 year in both countries, then diplomatic immunity does not apply. Source: BBC
Also to have diplomatic immunity you must be an accredited diplomat agreed by the host country before entering. She was not.
That's not the case. If it was then bypassing the Vienna Convention would be straightforward.
In the UK foreign diplomats commonly avoid prosecution for serious crimes because they are protected if their home country refuses to waive immunity.
> Also to have diplomatic immunity you must be an accredited diplomat agreed by the host country before entering. She was not.
It does not matter as family members are covered. What matters is whether her husband had diplomatic immunity.
In any case, diplomatic immunity is a moot point at this stage since she was quickly 'exfiltrated' and the US have made clear that they won't send her back.
They flew her out on a USAF plane: https://en.m.wikipedia.org/wiki/Death_of_Harry_Dunn
We do get mad when Saudi does the same thing, though.
It's one of the few advantages of having multiple independent and equally-accountable-in-the-law countries.
E.g., "nor shall any State deprive any person of life, liberty, or property, without due process of law"
But the truth wants to be free, and when crimes against humanity are committed at such scale as the Coalition is capable, there has to be more on the horizon.
One wonders what the AirWars folks are thinking about all of this. I sure hope groups like these, as well as Wikileaks, is going to survive this onslaught of injustice.
The truth will come out. There'll be more leaks.
Australian politicians very much like to talk about 'protecting Australians' when it comes to ISP data retention and laws against encryption, but they tend to go entirely missing in the kind of situations where they are actually needed on behalf of a citizen that, in this case, needs potentially life-saving protection.
Wikileaks is sitting on a ton of info about the ADF's war crimes as well, and the Australian government want nothing more than to prevent the intense scrutiny of its proud fighting force by the worlds' people that would result from such a leak. They are fighting tooth and nail to ensure that Wikileaks is invalidated completely in the minds of the Australian public, who generally have very little temerity when it comes to criticism of their armed forces actions.
EDIT: Besides which, there is Australia's heinous Sedition law, which is being floated as the means by which Assange would be silenced were he to land back in Australias territory.
https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghan...
The media has had plenty of information about alleged war crimes so I doubt Wikileaks is going to offer anything new.
So .. There is more to come.
And far worse things have happened to Australian citizens abroad than solitary detention.
Isn’t this another way of saying US legal protections don’t apply to people who aren’t American, and aren’t physically present in America (or under its jurisdiction)? I feel like this would be the case for other countries, too: free speech laws that protect Americans in America wouldn’t protect them in China or Australia or Kenya, and Kenyans, Australians and Chinese citizens outside of the US aren’t protected by US law, either.
If Assange was in a country that had no treaties with US, say for example Iran, he could avoid extradition easily, not so easily if there are strong agreements on both parties like UK and US have.
There are reasons why he wasn't in Iran or Afghanistan, one of them is that his life would be in more danger there than in any western court.
If Assange was extradited from Sweden, the country he escaped from, which is still an European country, he had the certainty that he could not be sentenced to the death penalty, that's a non-negotiable option if US ask for extradition from EU. UK will not be EU anymore starting from 1st of February 2020.
In the Assange case the charge is "conspiracy to commit computer intrusion." The US is asking the UK to be a friend and arrest this person and then send them to a place where the laws apply so they can be punished for what they are accusing him of:
"Prosecutors accused Assange of conspiring with Chelsea Manning, a U.S. Army intelligence analyst in Iraq in 2010, to crack a Defense Department computer password for accessing a vast trove of classified U.S. military and diplomatic material that subsequently was disclosed through WikiLeaks."
So just think of it like this: The US, UK and Australia are all "friends." The US thinks someone from Australia who was living in the UK did something that the US defined as bad. The US wants him to face trial for that and the only place to do that is in the US, so can their friends in the UK please send him along.
Extend that line of thinking to the internet. If I post a message on a forum, and that server is not located on USA soil then it can easily be argued that the speech did not occur in the US. 'From whence the voice was heard.'
HN appears to be primarily populated with like-minded individuals; so of course we will all point out the technical inaccuracies of my point, and will quickly follow-up with 'That won't happen here'. The same righteous indignation a few years ago would occur if anybody would have suggested that kids were separated from their families and forced into cages when people entered at the southern border .
This is not the era where kind, just, reasonable people are making or enforcing policies.
Woah there, went full tinfoil hat on us for a moment.
Agree, their intentions are probably to set an example and will act aggressively on Assange as much as possible, but they are still bound by their laws.. And in turn; 'justice'.
US believes he committed a serious crime and as such it's expected they would seek extradition just like with every other person who does so.
Everything besides the war crimes he uncovered? Yeah, sure.
He dropped the pants of high government officials and this is simply a case of revenge. Let's call it what it is.
Even if he was still in prison, Sweden is at least as capable of resisting USA extradition requests as the UK.
Even if he wasn’t in prison/an embassy (either not guilty or guilty and released after doing time), the indictment would’ve happened anyway, and led to another extradition attempt anyway wherever he was — including, I recon, if he went straight from Sweden to Ecuador, given that Ecuador did remove his asylum.
Either way, his conditions would’ve been better between them and now, but also the situation right now would be the same (except for the time spent in a UK prison for breach of bail, and held by the authorities while waiting for an extradition hearing, and the loss of bail bond money from his supporters) except that either he would be exonerated from sexual assault charges or a dangerous narcissistic rapist would’ve been punished with a prison sentence rather than allowed to present themselves as a victim [delete as appropriate].
But that rests on a lot of assumptions, such as that there wouldn't have been an earlier US indictment if he'd been conveniently accessible.
And of course it rests on the assumption that Sweden would have been as "capable of resisting" extradition. Which is a big question - one of the results of "Cablegate" was that we know that years after the Swedish government found out Swedish police was complicit in blatantly illegal rendition of two political asylum seekers who were afterwards tortured after being handed over to the government they were fleeing, the US was chastised secretly by the Swedish government after Swedish military intelligence caught Swedes assisting illegal rendition flights via Sweden. Nobody were ever tried for either incident. So it's not clear whether or not Sweden is even capable of stopping the US from unilaterally doing as it pleases, before even consider whether Sweden would want to.
I'm inclined to think the oddities in the Swedish case was down to domestic Swedish issues rather than US involvement, but at the same time I know for my part if I had feared US prosecution, I'd much rather stay in the UK than go to Sweden.
Then again, I left the UK because I no longer trust the UK government to do good, so naturally I must be unusual in my belief about the UK…
https://wikileaks.org/Sweden-Tells-the-UN-that.html
The Swedish desire to maneuver Assange into a black hole is self-evident in its refusal to interview Assange by telephone. Once that was done they would have had to charge him and present their evidence to the public under Swedish law.
Related, the US should respect the UN's ban on wars on aggression (Article 2, 39 of the charter), or otherwise retreat from its membership.
so sure if they argue he has no first amendment rights, then how do they argue they have jurisdiction?
IANAL, but that doesn't sound normal to me, particularly for such a case.
The Bill of Rights is descriptive of some of the natural rights of men, not prescriptive. The reason it exists at all was to satisfy people who quite rightly thought that without the extra legal insulation a malicious Congress or government would trample all over them.
Go read the 1st Amendment, it’s right here:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first five words are “Congress shall make no law”, or basically, this isn’t a grant given to the people, this is a restriction on the type of laws Congress is allowed to pass, and if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist!
Yet federal health workers can be legally bound to secrecy.
The Bill of Rights is in natural conflict with itself. My rights restrict your freedoms and vice versa. This is a complicated dance that has been extensively litigated.
Again, go read the Bill of Rights. They are restrictions on the national government’s ability to legislate or take certain actions against you, not a grant of rights doled out to satisfy you. “You have the freedom to speak and of the press, etc.” is far less powerful and meaningful than “Congress shall make no law...”
An arrangement defined and described by laws Congress wrote. Laws which restrict the free speech of Americans.
I agree that the negative rights of the American Constitution are far superior to the positive-rights philosophy of e.g. the UN Declaration on Human Rights, which is unenforceable ambiguous. But these rights are balanced against each other in a complex way.
Even so, Congress still doesn’t have the power to prevent government employees from speaking out politically, or choosing their own church or choosing not to participate in church, or from operating a printing press that criticizes Congress, or from publishing a blog criticizing the Senators from their home State. The restrictions upon government employees are entirely within the scope of their service to the government, and no further.
Or to put it another way, since Congress shall pass no law restricting the establishment of a religion, they can’t mandate civil servants in the Department of Agriculture attend a Catholic Church while those in the Department of Justice must be of a Protestant persuasion.
HIPAA restricts what non-government people can say.
It’s entirely possible the penalties applied by HIPAA could fall within the boundaries of what is and what isn’t Constitutional, but it’s also possible it is unconstitutional, and unconstitutional laws get struck down all the time when they’re thoroughly challenged, but in our legal system, they have to be challenged first, meaning someone has to make the case.
But that's obviously still a slippery slope. You get the same sort of scenario with classified documents which are at the same time evidence of government misconduct. Everyone with access to the documents agreed not to disclose them, which means there is no one who can reveal the misconduct to the public without violating that agreement.
JA is not a US Citizen, and I admit I do not know where that lands him constitutionally speaking.
Assange is being charged with civilian, federal charges, so the citizens only interpretation doesn't really apply.
We don't treat tourists under a different Constitution or deny them 1st amendment rights.
[1] https://en.wikipedia.org/wiki/Agency_for_International_Devel....
It’s also important to remember that military tribunals are not nor have they ever been Article III courts, nor do the same standards apply in the case of war that would apply in civil or criminal cases.
Wouldn't this logic extend to all the other amendments as well? Meaning Assange has no rights, at which points, why even bother with a trial? Just execute him as soon as he touches US soil.
Of course, this logic could be applied to all foreign nationals then.
My only question is, if US rights don't apply to foreign nationals, how come legal restrictions do apply? Can the executive branch just arbitrarily decide which laws apply to a foreign national?
Note, the distinction here: Someone who is residing outside of the US.
"Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States"
Julian Assange is an Australian Citizen who was residing in the United Kingdom and was not being held by agents of the US Government. It's unclear under what precedent he would enjoy protections under the US Constitution.
But I believe the US executive branch has not ascribed to that legal philosophy since at least George W. Bush's presidency.
Not everybody believes in rights that are not granted, so I think the view that these rights only applied to citizens was always around, but yes, 9/11 did provide added motivation to deny rights to non-citizens.
In Assange's case though I don't see how the First Amendment will help here, as the charge is "Conspiracy to commit Computer Intrusion." I don't think the district court is making a case about whether Assange has the right to publish data freely.
So for example if a Chinese citizen is arrested in Beijing by the Chinese Police for protesting in Tienanmen square, nobody would seriously claim that the US Constitution protects their speech. - So that covers the case where there is no protection from the US Constitution because the US doesn't have jurisdiction there.
How about an example where a Bolivian Citizen starts a clinic in Bolivia and then shares all of their patient's data with anyone who wants it within the borders of Bolivia. That is a clear breach of HIPAA rules but again because the US does not have jurisdiction, then nobody would seriously claim that the US has anything to say about this situation.
Lastly, assume the case where a Norwegian Citizen sitting in Oslo accesses bank accounts of US citizens and transfers money to his account that is in Switzerland without their consent. What crimes is this person committing and who has jurisdiction to enforce them?
That is unclear, but I think it comes down to how reciprocal non-US countries are when it comes to what laws should be enforced by one country and the citizens of another.
I would say it's more about whether you're willing to apply it consistently or not.