- The Washington Times - Wednesday, July 2, 2014

When Libya militia commander and Benghazi suspect Ahmed Abu Khatalla was detained by U.S. officials in Libya, he was not automatically guaranteed the same constitutional protections had he been arrested, legal experts say.

Fourth and Fifth Amendment protections on searches and self-incrimination do not always apply to foreign nationals when their property is searched or they are interrogated in foreign lands.

But Mr. Khatalla, whom Justice Department officials have decided not to charge before a military tribunal, will enjoy the same constitutional protections as any American citizen since he is being prosecuted through the federal criminal justice system.  

“Non-resident non-citizens have basically the same rights when being tried in U.S. courts as do U.S. citizens and green-card holders,” explained Professor Gabriel J. Chin, a professor at the University of California, Davis School of Law. “They enjoy virtually all of the protections of the Bill of Rights when on trial in the United States,” including the right to a jury trial and a burden on the government to prove guilt beyond a reasonable doubt.

“There are two exceptions where nonresident non-citizens may be treated differently,” he added. “First, there are some cases holding that the Fourth Amendment right of ‘the people’ to be free from unreasonable searches and seizures does not apply to searches of non-resident non-citizens overseas. Second, the Miranda requirements are not applicable to non-U.S. law enforcement agencies acting overseas without U.S. cooperation.”

If U.S. agencies are questioning a non-citizen overseas, Miranda’s requirements may be relaxed to a degree, according to the lower courts; the Supreme Court has not definitively ruled on this.

According to Bruce Zagaris, a Washington, D.C.-based foreign relations lawyer who specializes in cases involving extradition as well as government abduction, constitutional rights for non-resident aliens overseas can be triggered based upon a number of factors.

“Foreigners do not always have the protection of the Bill of Rights when they are in foreign lands, so it is a lot easier for the U.S. to obtain evidence against persons abroad,” he said. “In some cases, it can be to the government’s advantage to pursue suspects overseas for that very reason.”

In 1990, the Supreme Court ruled in U.S. v. Verdugo-Urquidez, that Fourth Amendment protections do not apply to searches and seizures by U.S. agents of property owned by nonresident aliens in a foreign country.

In 1998, the court ruled in U.S. v. Balsys that statements obtained by U.S. interrogators cannot be used in foreign prosecution, but the Fifth Amendment in itself does not prohibit American prosecutors from using statements obtained by foreign officials.

The U.S. and Libya do not share an extradition treaty, but federal legislation and various judicial doctrines empower the U.S. with “extraterritorial” jurisdiction over foreign persons in foreign lands when they have committed an act of violence against a U.S. national or diplomat, such as Ambassador Christopher Stevens in the case of Benghazi.

In 1992, the Court ruled in U.S. v. Alvarez-Machain that forcibly abducting foreign nationals to answer for U.S. crimes is not a bar to being tried and prosecuted in an American court of law.

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