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You can't, under customary international law, prosecute lawful combatants (i.e. enemy soldiers who have a chain of command, wear uniforms etc.) for the normal crimes (murder, arson, unlicensed driving etc.) that they commit in the course of invading your country. I'm not aware of this being documented in any treaty, but it is a very old rule, and it is a background assumption of things like the protection for PoWs in the Geneva Conventions.
Hence invading armies are not subject to the jurisdiction.
So the children of (non-citizen) spies get citizenship?
(Maybe they do, IDK -- the Rosenbergs were Americans, and I don't know of any other famous examples)
Most foreign spies operate under diplomatic cover - rule 1 of Cold War era intrigue is that the Soviet military attache is a spy. So they get expelled rather than prosecuted if caught, and their children don't get citizenship as children of diplomats.
I was thinking of sleeper agents -- these are a thing, right?
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The children of the Russian illegals who were caught in 2010 maintain their citizenship. As far as I know, no Soviet illegals in the US were ever caught.
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Why would they not (unless they pose as diplomatic staff)?
Most effective spies would enter the US with the approval of the US government (given under false pretense).
If the government can retroactively declare you illegal because you cheated with your immigration paperwork, and this also makes your kids born in the US non-citizens per Trump (and thus illegals in turn), then that would immediately call into question the US citizenship of a lot of people.
I guess expatriating people who only got their citizenship as a means to better spy on you seems reasonable, but denying their kids the right to US citizenship would create a lot more headaches than it solves.
Well they can certainly do that:
https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-1
https://www.ice.gov/news/releases/us-citizenship-revoked-bulgarian-man-marriage-fraud-scheme
https://fam.state.gov/fam/07fam/07fam1200apD.html
I think that's the point!
What I was getting at with the spies (vs the soldiers) is that they do get tried and jailed for whatever crimes they commit in a more-or-less normal way -- so they are 'subject to the jurisdiction' in that sense -- but it would seem kind of weird to create more potential spies who actually are citizens this way.
I'm unaware of any real life examples of this, but it seems like the sort of thing that must have happened at some point?
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So if some pre-state people, like native americans from outside US territory, came in for a raid, that would not be an "invasion" and children they have on the way would be citizens?
And what about the not-normal crimes? Do others with a partial immunity, such as government officals, also not count as under US jurisdiction?
I would argue that this would simply make the invaders war criminals which can be prosecuted under military law.
However, if the US decided to prosecute them under peacetime law (e.g. because the "invasion" is just a few drunk Canadians which were easily rounded up by the sheriff), then I would argue that birthrate citizenship would also apply.
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