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Comment by realce | Hacker News Reader

I'm sorry to be short in reply to such a well written post but - the first amendment doesn't matter, he's not an American, it's not his right to be protected or prosecuted over.

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How is he subject to US law but not the US constitution?

People somehow lose their ability to utilize Aristotelian logic when it comes to Assange. The unparalleled wave of propaganda unified against Assange makes people unable to question the narrative.

Because if a state goes against this principle then the US might just kick it off the inter-back clearance system (SWIFT), or invade it, or engineer a coup against its government, or a combination of the above.

> How is he subject to US law but not the US constitution?

The Constitutional rights of foreign foreign nationals is complicated [1]. Long story short, the Constitution may not protect them as fully as it does U.S. persons (Americans and foreigners on American soil).

[1] https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?a...

Which is horrible and in desperate need of reform. If the law applies differently to foreigners, you are essentially a proto-fascist state.

Thanks for posting the article, it's pretty well summarized by:

> ... it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. But the presumption is wrong in many more respects than it is right. While some distinctions between foreign nationals and citizens are normatively justified and consistent with constitutional and international law, most are not.

Non-citizens don't have a fundamental right to vote, or to enter the country. Non-citizens cannot hold federal office. Non-citizens accused of crimes may be held in jail pending their trial in situations where citizens would be free pending trial. But that's a pretty short list. In fact nearly all fundamental freedoms of the Bill of Rights (speech/press/religion/assembly) and rights to a fair trial apply to citizens and non-citizens alike.

> the first amendment doesn't matter, he's not an American

That makes no sense whatsoever to me. Where in the US Constitution is this restriction on the First Amendment?

The First Amendment is part of an American document describing American precepts of law for the American government. Specifically, it prevents the American legislative body known as Congress (who represents, exclusively, the American electorate) from passing laws abridging the freedom of speech. It's implied that the First Amendment only applies to Americans, for the same reason that, say, the laws of the EU or Russia don't apply to Americans. Governments only have sovereign authority over their citizens.

Mind you, the First Amendment and freedom of speech are related, but not the same, and one can easily argue that freedom of speech is universal, but not the American Constitution.

That's not the interpretation the courts have taken. Essentially you can't take the constitution as a whole and say it applies to Americans or not. There are rights specifically conveyed to citizens (like voting). Those are clearly American only. Then in contrast to that there are rights conveyed to people generally, and rights formed as blanket restrictions on government. Those are interpreted as equally applying to non Americans.

> Those are interpreted as equally applying to non Americans.

But, oddly, as not applying fully to acts of the American government taken outside of the borders of the United States, which is why Gitmo is used for sketchy War on Terror detentions, and not any place on sovereign US territory rather than territory notionally leased by the US from a foreign sovereign.

I think that's in the realm of grey legal theory that hasn't been tested in court. But yes, that's a great point, and I coincidentally just said something similar in another comment.

> I think that's in the realm of grey legal theory that hasn't been tested in court.

Johnson v Eisentrager (1950) is the landmark case, but its been fleshed out subsequently (and most of those decisions have narrowed the apparent gap in the Constitution it opened up), largely in response to the decision to use Gitmo as a get out of law free card. But the existence of that decision is why Gitmo got used.

And given the split on those decisions limiting Eisentrager, I wouldn't want to see what the current court would do with cases in that area...

> It's implied that the First Amendment only applies to Americans, for the same reason that, say, the laws of the EU or Russia don't apply to Americans.

The laws of the EU or Russia certainly do apply to Americans in EU or Russia. In fact they apply to anyone within the respective jurisdictions.

The 1st Amendment is a moot point as Assange is not being sought for "speech" he has made but for criminal conspiracy and providing material support in furtherance of a crime. The US Constitution does apply to anyone the US Federal Government interacts in my opinion, as it is a definition and limitation of the powers of the US Federal Government. I know it hasn't been applied in practice many times and there are Americans who disagree with this stance but they're wrong just like some people were wrong about slavery.

The bill or rights protects all people not just US citizens.

That's true inside US jurisdictions. Outside of that, it's complicated [1].

[1]: https://inter-american-law-review.law.miami.edu/u-s-constitu...

If he gets extradited and tried I think all those rights will be there.

That would only apply after the time he is here, not for activities before retroactively.

I believe it's an open legal question. That's one reason why the prison at gitmo is where it is, so that the prisoners there were never brought on to US soil where the court system has the potential to grant them more rights.

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