The US President has no authority to kidnap or rendition people without habeas corpus and due process Sweeping interpretations of presidential power and government secrecy after 9/11 bore fruit in the area of rendition. Under this doctrine, the President Bush the second, claims to possess inherent authority to kidnap individuals in foreign nations and deliver them to other countries for interrogation. In the past, Attorneys General and other legal commentators understood that: (1) Presidents needed congressional authority for these transfers and (2) the purpose was to bring the person to trial. The Executive Branch in the long history of the United States never claimed independent authority to transfer suspects to another country without the support of a treaty or a statute, and in the infrequent cases where administrations did assert such authority it was for the purpose of bringing an individual to trial with associated judicial safeguards. And Congress needed to act, either by statute or treaty, to ensure that fugitives were not surrendered to “tyrannical laws.” In a letter to Charles Pinckney, Secretary of State Thomas Jefferson underscored the risks of giving up fugitives to a despotic government instead of to a free one. Even under relatively free governments, such as England’s, Jefferson found the punishments so disproportionate to the crimes that the thought of rendition or extradition was repugnant. In a paper prepared in 1792, he noted that in England “to steal a hare (rabbit) is death, the first offence.” In his view, all excess punishments were a crime. It followed that “to remit a fugitive to excessive punishment is to be accessary to the crime.” Jefferson believed that in deciding to return someone to another country, the Legislative Branch had to decide the seriousness of the crime. Also, fugitives were entitled to judicial proceedings under Justices of the Supreme Court or district judges before surrender to their governments. In 1793, Jefferson responded to the request by the French Minister to the United States to have certain individuals handed over because they had committed crimes against France. Jefferson explained that the laws of the United States “take no notice of crimes committed out of their jurisdiction.” The “most atrocious offender . . . is received . . . as an innocent man, and [the laws] have authorized no one to seize or deliver him.” The consular convention with France included a provision for delivering up captains and crew members, but such actions required the review of the district judges of each state. Alleged criminals “cannot be given up, and if they be the crew of a vessel, the act of Congress has not given authority to any one officer to send his process through all the States of the Union.” Without specific authority granted by the legislative branch, either by treaty or statute, “the President has no power to make the delivery. (so said the US Attorney General advise stated in 1821) Congress had decided, by an act of March 3, 1819, that it was the duty of government to bring individuals charged with piracy to trial in the circuit court for the district into which they were brought or where they were found. It was not “in the power of the President to send them to any other tribunal, domestic or foreign, upon the ground that evidence to convict them can more conveniently be obtained there.” In 1841, Attorney General Hugh Legaré examined whether states could enter into “any agreement or compact, express or implied” to send “fugitives from justice” back to a requesting foreign country. Legaré decided that these executive power policies set by Jefferson “and sanctioned after the lapse of upwards of thirty years” were now “too solemnly settled” to (such that they cannot be) disregard. In 1853, Attorney General Caleb Cushing endorsed Legaré’s opinion. Treaties stipulated that extradition must be preceded by judges and magistrates hearing evidence of criminality and certifying the charge before the President may turn the individual over to another country. During the Civil War, President Lincoln ordered the seizure of a Spanish subject, Jose Arguelles, and he was return to Cuba for trial. No extradition treaty existed. The Senate and the House requested that the Lincoln Administration explain what authority had permitted the President to deliver Arguelles to Spain in violation of Article I, of the Constitution. The Senate and the House requested that the Lincoln Administration explain what authority had permitted the President to deliver Arguelles to Spain, because Article I of the Constitution clearly gives that power to Congress. New York proceeded to indict for kidnapping the U.S. Marshal and the four deputies who had seized Arguelles. Although the prosecution went no further, the damage done to Lincoln and presidential power was substantial. The Supreme Court in 1936 spoke unanimously about the President’s lack of authority to act independently and unilaterally in such matters:
Posted on: Thu, 28 Aug 2014 05:35:50 +0000