Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Justices take overseas abduction case
msnbc ^ | 12/1/03

Posted on 12/01/2003 11:41:50 AM PST by knak

U.S. argues it could impact capture of someone like bin Laden

ASSOCIATED PRESS

WASHINGTON, Dec. 1 — The Supreme Court said Monday it would decide if federal agents can sneak into foreign countries to arrest suspected criminals and bring them to America for trial, a case that tests the reach of the government’s terrorism-fighting powers. The Bush administration said covert kidnappings of suspects overseas are rare, but that the government needs such authority.

A LOWER court ruling would block federal agents from bringing Osama bin Laden to America to face charges in the Sept. 11 attacks, Solicitor General Theodore Olson said, and jeopardizes U.S. efforts “to apprehend individuals who may be abroad, plotting other illegal attacks” on America.

The case that justices will review next spring dates to 1985, when a federal drug agent was kidnapped, tortured and killed in Mexico.

(Excerpt) Read more at msnbc.com ...


TOPICS: Front Page News; News/Current Events
KEYWORDS: scotus; theodoreolson

1 posted on 12/01/2003 11:41:51 AM PST by knak
[ Post Reply | Private Reply | View Replies]

To: knak
The US Constitution grants Congress the power to issue "letters of marque and reprisal."
2 posted on 12/01/2003 11:46:11 AM PST by sourcery (This is your country. This is your country under socialism. Any questions? Just say no to Socialism!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: knak
I think that Solicitor General Theodore Olson should wear a picture of his wife to court. Perhaps that would help hammer the message home that we are not playing with nice people here.
3 posted on 12/01/2003 12:28:45 PM PST by Question_Assumptions
[ Post Reply | Private Reply | To 1 | View Replies]

To: sourcery
Unfortunately, if the Congress is too gutless to declare war these days, I doubt they'd have the guts to issue letters of marque.
4 posted on 12/01/2003 12:31:23 PM PST by Question_Assumptions
[ Post Reply | Private Reply | To 2 | View Replies]

To: Question_Assumptions
Unfortunately, if the Congress is too gutless to declare war these days, I doubt they'd have the guts to issue letters of marque.

When was the last time they were asked to declare war? No offense to the current office-holder, but I think it is the Commander-in-Chief who should make the request.

5 posted on 12/01/2003 1:30:40 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 4 | View Replies]

To: knak
This is stupid!The scrotum wants to rule on something that everybody is doing by sneaking around!HA!
6 posted on 12/01/2003 1:52:58 PM PST by INSENSITIVE GUY
[ Post Reply | Private Reply | To 1 | View Replies]

To: Looking for Diogenes
When was the last time they were asked to declare war? No offense to the current office-holder, but I think it is the Commander-in-Chief who should make the request.

They have been asked to approve of a series of military actions including the recent invasion of Iraq, have they not? And if the recent invasion was not an act of war, I don't know what is. That the President did not ask for a formal declaration of war is because he knew that Congress wouldn't have granted him one. Why ask for something you won't get? Of course you are correct that the blame doesn't belong simply with Congress. No one has the guts to actually declare war even when that is exactly what they are doing. I suspect that some of this has to do with treaties that we've signed, though.

7 posted on 12/01/2003 3:56:46 PM PST by Question_Assumptions
[ Post Reply | Private Reply | To 5 | View Replies]

To: Question_Assumptions
That sounds like circular logic. The Constitution has a clear mechanism which no president for the last 60 years has invoked, despite many military campaigns since that time. Ignoring the Constitution in that manner sets a poor precedent.
8 posted on 12/01/2003 4:31:35 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 7 | View Replies]

To: Looking for Diogenes
"Ignoring the Constitution in that manner sets a poor precedent. "

The precedent was set 200 years ago by Adams and Jefferson who conducted wars under congressional resolutions instead of a formal "declaration of war" (whatever that may be).

They certainly didn't "ignore the Constitution" LOL!

It lets congress keep a closer hand over the proceedings- which can be a good thing or a bad thing.

9 posted on 12/01/2003 4:41:12 PM PST by mrsmith
[ Post Reply | Private Reply | To 8 | View Replies]

To: mrsmith
The precedent was set 200 years ago by Adams and Jefferson who conducted wars under congressional resolutions instead of a formal "declaration of war" (whatever that may be).

I'm not sure that sending a few frigates out to drive away pirates is the same as a 'war.'

OTOH, Korea and Vietnam were clearly wars. They had huge commitments of troops, lasted for more than 12 months, cost huge sums of money, sought involved land battles, etc.

They certainly didn't "ignore the Constitution" LOL!

Just because they were among the "Founding Fathers" doesn't mean they were inerrant. The Alien and Sedition Acts were not in line with the Constitution, for example.

It lets congress keep a closer hand over the proceedings- which can be a good thing or a bad thing.

That was the plan of the authors of the Constitution.

10 posted on 12/01/2003 4:58:53 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 9 | View Replies]

To: Looking for Diogenes
Jefferson sent more than a "few frigates" against the Barbary Pirates.
As a percentage of US forces, he sent much more than Bush did.

Adams' war with France is the penultimate "war by resolution" though.
He too used a far greater percentage of US forces than Bush did.

The use of resolutions instead of a 'declaration of war' (whatever that may be) in Adams' "Quasi-war" with France was expressly done so a tight rein could be kept on it. Congress did not want it getting out of hand.

It's very convenient to assert that the "Founders were wrong!" when one disagrees with them. But I hope you understand it's not taken seriesly?

11 posted on 12/01/2003 5:15:01 PM PST by mrsmith
[ Post Reply | Private Reply | To 10 | View Replies]

To: mrsmith
What do you think the intent of the founders was in crafting the war powers clause of the Constitution?
12 posted on 12/01/2003 5:19:02 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 11 | View Replies]

To: Looking for Diogenes
For congress to have the power to declare (not make) war.

In plain terms: it's to keep the Executive from "starting trouble"!


Our first foreign war, Adams' Quasi-war with France (and I could be wrong about the percentage of forces he employed- as there was a large army under Washington and Hamilton built up, at least on paper, to defend against a French invasion from Haiti) was fought under resolutions, but no one seems to have heard of it!
The use of resolutions let congress keep a very tight rein on it. There were Su[preme Court cases over prizes that turned on the technical wording of the congressional resolutions. The military had very little freedom of action.
Though they still managed to throw the French out of a few Caribbean islands.

Personally I was all for a "general" war with Iraq with a formal declaration and everything.
I frankly think it was just timidity that that the war wasn't conducted that way.

13 posted on 12/01/2003 5:30:59 PM PST by mrsmith
[ Post Reply | Private Reply | To 12 | View Replies]

To: Question_Assumptions
Almost certainly it's a treaty issue, both because of our obligations and other states' obligations under international law. That, and who the heck we'd declare war AGAINST, regarding terrorism. Doesn't a declaration have to go after a state? What if the state isn't intentionally harboring but legitimately can't stop terrorists (Indonesia, the Philippines, Afghanistan) because of the pisspoor territorial and governmental integrity of their country?

I don't know what exactly the right thing to do is re: declarations of war, but I do know that offering massive bounties to mercs for bringing in specific suspects, and building real border controls here, would be much more efficient preventative steps against terrorism against Americans.
14 posted on 12/01/2003 5:42:40 PM PST by LibertarianInExile (When laws are regularly flouted, respect of the law and law enforcement diminishes correspondingly.)
[ Post Reply | Private Reply | To 7 | View Replies]

To: mrsmith
For congress to have the power to declare (not make) war. In plain terms: it's to keep the Executive from "starting trouble"!

I agree, with one addition: since Congress has the power of the purse and wars are expensive, the war powers clause also ensures that the Executive won't run up a big bill without congressional authorization.

A comparison of the percentages of soldiers or sailors that were committeed to those early battles versus those committed to modern wars is meaningless. The founders were explicitly against having a standing army. They raised armies and built ships as the necessity arose.

That said, neither of Adam's Quasi-War nor Jefferson's atack on the Barbary Pirates involved American land forces some Marines or mercenaries. They were almost entirely naval conflicts.

PS: here is the record of the Consititutional Convention's debate on the clause.

"To make war"

Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in 25 Senate, so as to give no advantage to 25 large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.

Mr. BUTLER. The objections agst. the Legislature lie in 26 great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" 27 better than "declare" the latter narrowing the power too much.

Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.

Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert declare — in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. *29 Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. 31

15 posted on 12/01/2003 9:28:12 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 13 | View Replies]

To: Looking for Diogenes
But it is a fact that the "precedent" was well established by Adams and Jefferson (two significant Founders who also represented the two opposing "parties" of the time) that the congress could constitutionally use it's war powers by resolutions (President Washington also fought indian wars without a "declaration of war" from congress.)
Justice Story 1833:"§ 1169. The power to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation;
or [else] by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed.
The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, "that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories."
The latter course was pursued in the qualified war of 1798 with France, which was regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts. "

Note that the war with France showed the use of resolutions to increase congressional oversight over the use of it's war powers- not to lessen it.
For instance one of the resolutions, "divers acts of congress", under which the Quasi-war was conducted only authorized our military and privateers- for some good reason I suppose- to capture ships going to France or French ports, and not those coming from them.
Such restrictions would be at least incongruous in any "Declaration of War" and obviously were not in any "laws of war".
Congress did not want this war with it's former ally, who still had many friends in America and was fighting against our "natural enemy" Britain, to get out of hand in the slightest.
So it authorized it only by very narrow resolutions.

Whether congress wants to have limited or unlimited warfare is up to it, and it is free ( as congress decided in 1789) to choose and to put whatever limits it desires upon the warfare it authorizes.

Of course, Iraq fit perfectly into the general war that a "declaration of war" is appropriate for, and I cannot see any good reason for not doing so.

Unless you're going to insist that only the foreign use of a large standing army is comparable- negating any historical guidance pre-1815 since the only use of a standing federal army was by Washington against indians in the NW Territories which were US territory even if occupied by the British at the time- I think we're just going to have to agree to agree that the use of resolutions to exercise congress' war power is still constitutional today as it was during our first three administrations, if not always wise.

16 posted on 12/02/2003 3:34:53 PM PST by mrsmith
[ Post Reply | Private Reply | To 15 | View Replies]

To: mrsmith
Excellent response. Thanks for the detailed information. I have a much better understanding of the place of congressional resolutions short of war declarations.

Given recent history I wonder if we will ever see Congress declare war again, regardless of the provocation.

17 posted on 12/02/2003 3:48:45 PM PST by Looking for Diogenes
[ Post Reply | Private Reply | To 16 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson