- The Washington Times - Monday, December 1, 2003

From combined dispatches

The Supreme Court said yesterday it would decide whether federal agents may sneak into foreign countries to arrest criminal suspects and bring them to the United States 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 the government needs that authority.

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

The high court yesterday also said it would clarify the impact of its ruling last year that juries, not a judge, must decide if a convicted killer lives or dies, and granted an exception to allow a California atheist who wants the words “under God” stripped from the Pledge of Allegiance to argue before the court next year.

Michael Newdow, a doctor and lawyer who is not a member of the Supreme Court Bar but wanted to argue the Pledge case himself, hasn’t had his law license for the three years required to qualify for the Supreme Court Bar.

The justices are reviewing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco that found the Pledge of Allegiance in public schools is unconstitutional because of the reference to God. The high court stayed that ruling until it makes its decision.

In the covert kidnapping case, the justices will decide if a Mexican doctor charged but never convicted of aiding in the torture of a federal agent is entitled to damages from the U.S. government and Mexican nationals who arrested him, under several federal laws.

A sharply split 9th Circuit said that federal drug agents acted illegally when they ordered the 1985 kidnapping, upholding an award of $25,000 to the doctor. The court said that federal law allows lawsuits for suspected violations of international law or treaties.

The Supreme Court ruled earlier that his abduction did not violate an extradition treaty with Mexico. The Bush administration has asked the court to clarify whether federal officers can arrest someone in a foreign country if they have probable cause to suspect the person of a crime.

Mr. Olson, the administration’s Supreme Court lawyer, said if the court allows lawsuits over arrests, people can sue America’s allies “including those supporting this nation’s fight against terrorism.”

Attorneys for the physician, including American Civil Liberties Union lawyers, said the case has nothing to do with the war on terror and that Congress has not authorized the type of abduction-arrest used against the doctor.

“They portrayed it as a drug case 10 years ago. Suddenly they’re deploying the arguments they can win with,” one of the doctor’s attorneys, George Washington University law professor Ralph Steinhardt, said yesterday. “It’s a little hard to take an innocent man and make him the object lesson for the government’s prosecutorial powers.”

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