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If John McCain was born in the United States, aren't Guantanamo prisoners here, too?

By pharrell

John McCain was born in the Panama canal zone, a fact that delights pop legal scholars and has produced of a handful of newspaper articles about whether the Senator is constitutionally eligible to serve as the next President, since Article II of the Constitution requires that presidents be "natural born citizens." (See the Post's recent article for a representative sample).

McCain's arguments, which have been vetted by, among others, Harvard Professor and ubiquitous legal pundit Larry Tribe, essentially boil down to two points. First, under the relevant statutes in force at the time of McCain's birth, children of servicemen stationed in the Canal Zone were declared citizens at birth. So if "natural born citizen" means nothing more than "born with citizenship," McCain clearly qualifies. His other principal argument is that the United States "exercised sovereignty" over Canal Zone, in light of the fact that it was under exclusive American jurisdiction at the time. The legal support for this view seems to come from 1986 Supreme Court case, and runs counter to a State Department manual stating that American military instillations abroad are not part of the United States. (According to the Post, "Tribe said the manual is an "opinion" with no legal status.")

I'm inclined to agree with this latter argument. But it raises an interesting question. If the federal government's effective control over Canal Zone in 1936 rendered it part of the United States for the purposes of Article II's citizenship requirement, why doesn't the federal government's effective control over Guantanamo today render it part of the United States for the purposes of Article I's guarantee of habeas corpus? Perhaps Michael Mukasey would like to explain the difference?

Full post as published by Harrell Blog on May 02, 2008 (boomark / email).