by Ken Stremsky

Thanks for commenting on the Constitution in your commentary dealing with punishment. Thanks also for mentioning Amendment Six.

Congress gets to decide if terrorists are tried in civil courts or military tribunals and not the President and Attorney General. I believe Amendment Six applies in military tribunals as well when criminal prosecutions are taking place.

Terrorism is both criminal and military. Military tribunals dealing with criminal prosecutions, however, should be open to the public if Congress chooses military tribunals for criminal prosecutions.

Our government has the power to abrogate a Treaty- that is, nullify a Treaty. I mention "abrogate a Treaty" because I think it makes a lot of sense for Congress to "grant Letters of Marque and Reprisal" to deal with terrorists. I think this is more useful and less harmful to us and others than many of the things we have done dealing with terrorists.

Ken Stremsky
kstremsky at live dot com

Mr. Berg-Andersson responds:

Congress certainly has the power to define the jurisdiction of Federal courts by law, as the very first sentence of Article III, Section 1 of the U.S. Constitution states that [t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. This "ordain[ing] and establish[ing" of a Federal Court system by Congress obviously implies that Congress also has the power to, by statute, define- and, later, alter- the jurisdiction of said courts Congress itself has created.

All that Congress cannot do, in this regard, is add to the original jurisdiction of the Supreme Court as defined in the second clause of Section 2 of Article III which grants to the Supreme Court, in effect, general trial jurisdiction over Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party. Congress may, however, alter the Supreme Court's appellate jurisdiction per (again, in Art. III, Sec.2, clause 2) such Exceptions, and under such Regulations as the Congress shall make.

Therefore, yes, Congress may- at any time- pass a bill (one which will then become Law upon either the President's signature or an override of the President's veto of same) in which, but in this legislative sense only, Congress determines in just what type of tribunal[s] terrorist suspects may be tried...

however, in ordinary circumstances absent such specific statutory language, the actual decisions as to where those who have been specifically charged with committing what are, after all, crimes (and terrorist acts are, indeed, most criminal) are to be tried is almost always left in the hands of the prosecutors (so-called "prosecutorial discretion"), as the prosecution of criminal defendants is an Executive function, a division of that branch of government which we all generally refer to as "Law Enforcement".

At all levels of American governance, Law Enforcement- both in the sense of everyday policing (which includes arresting those who end up becoming criminal defendants), as well as prosecuting said defendants at trial- is considered to be just such an Executive function not subject to direct "micromanagement" by a legislative body: in the Municipality here in the State of New Jersey in which I happen to reside, for instance, the local Police are- besides being subject to all due State statutes and regulations (as local Civil Divisions below the State level are not at all sovereign, as is the State [such Civil Divisions being mere creatures of the State, set up to- among other things- carry out State functions on a local level: indeed, most of the offenses which involve my Borough's local police force are violations of State law, whether traffic infractions or criminal acts])- directly accountable to Borough Council, but only because (as Boroughs in New Jersey operate under so-called "weak Mayor"-type charters) Council has executive, as well as legislative, powers...

meanwhile, on the level of my County (also a mere Civil Division of the State sans sovereignty), the County Sheriff is an elective officer, chosen separately from the (also elected) County Board of Chosen Freeholders that governs a New Jersey County; criminal cases, meanwhile, are prosecuted by the County Prosecutor (not elected in my State but, rather [and this is most telling when it comes to lack of sovereignty in local government], appointed by the Governor of the State); on the (sovereign) State level, the Attorney General (also appointed, and not elected, here in New Jersey) is the chief Law Enforcement officer of the State, while the State Police here in New Jersey are directly accountable to the Attorney General who, in turn, is accountable to the Governor- for, under New Jersey's own Constitution (in its Art.V, Sec.I, paragraph 11), [t]he Governor shall take care that the laws be faithfully executed.

And what I have just stated above is, in essence, the basic, general arrangement in every State of the American Union- though, of course, the details differ from State to State (for example: while Counties and their many Municipalities share elements of local governance- including Law Enforcement- in my own State of New Jersey, in Mr. Stremsky's own State of New Hampshire, the Counties actually do very little in comparison to those in my own State and the "heavy lifting" of local governance in the Granite State is, thereby, left to that State's Towns- with their quintessential "Town Meeting"s- or the State's relative handful of Cities, where such has replaced the Town Meeting system of local governance; meanwhile, in many a State of the South and West, large portions of Counties are not at all part of incorporated municipalities and, thereby, remain unincorporated sections in which the County is, effectively, the only local government and in which the County Sheriff's office is the local Police Department)- but, in all cases, Law Enforcement is carried out (yes, "executed") by departments and agencies responsible, in the first instance, to the executive branches of each level of governance.

So it is on the Federal level:

Federal crimes are prosecuted by the United States Attorneys for each Federal Court District, all directly accountable to the U.S. Department of Justice headed by the Attorney General of the United States (currently Mr. Holder), himself responsible to the President of the United States (Mr. Obama at the present time, of course). All these U.S. Attorneys, as well as the Attorney General himself, have that same "prosecutorial discretion" as is allowed to my State's Attorney General or its several County Prosecutors. Thus, absent some specific mandate by Congress via statute not allowing for same, Law Enforcement remains an element of the Executive branch of the Federal Government, the very essence of the President's Oath of Office to "faithfully execute [his] Office" as well as "to the best of [his] Ability, preserve, protect and defend the Constitution of the United States": therefore, the Attorney General- and, yes, ultimately even the President to whom the Attorney General is directly responsible- do get to decide if terrorists are tried in civil courts or military tribunals... at least as regards a particular case.

As for the particular case now in question: the argument has also been made (though, it must be fairly noted, not at all by Mr. Stremsky in his 'vox' to which I am now responding) that the terrorist suspects should be tried by military tribunal, rather than by civilian courts, "because we are at war"... well, we were not at war on the morning of Tuesday 11 September 2001 (for example: I myself was able to freely go on vacation even as- as well as after- the events of 9/11 themselves transpired, as I myself noted in passing in my very first Commentary written after the attacks); and, therefore, the deaths that were caused by terrorist act were, in fact, crimes committed against civilians in an area that was civilian, and not military, as regarded its nature of governance as well as criminal jurisdiction (the same, of course, cannot at all be said of the Pentagon- also attacked by terrorists on 9/11- which is, after all, a military installation: but we are not here discussing the concomitant attack on the Pentagon, only that on New York City's World Trade Center, as this might relate to the propriety of trying those accused of plotting 9/11 in a civilian court in New York)...

nor is New York City on a war footing even now!...

for I have been in Manhattan several times over the past few weeks and months (in at least a few cases, I even emerged from the PATH rail transit system that gets me from New Jersey into New York City at what is now denominated 'Ground Zero'!) and I have not seen, for instance, any tanks in the streets guarding areas cordoned off with, say, barbed wire (put another way, lower Manhattan 2009 has not at all seemed to, in the least, resemble, say, occupied Berlin circa 1945!): the local civilian courts, both State and Federal, all appeared to be open for business whenever I happened to be strolling by the buildings in Manhattan's Foley Square which house them on an ordinary workday: thus, I cannot at all understand nor fathom why a crime committed in the very "State and district" in and for which these courts function, cannot- or should not- be prosecuted in those same courts...

indeed, failure to do so (whether out of fear of another terrorist attack or no) would itself be an implicit admission that those who fomented the 9/11 attacks- at least those carried out in lower Manhattan- have actually gained a little something out of their criminal actions: this being getting America to, in response to terrorism (or even the threat of future terrorism), abandon at least one core principle of its own Constitutions- State, as well as Federal- and the legal system those very documents harbor!

As for Letters of Marque and Reprisal and abrogation of Treaties related to same, this has already been taken up in a discussion engendered by Mr. Stremsky's 'vox Populi' of 14 February 2007: if only for clarification regarding a subject which may not be all that familiar to many a reader of The Green Papers, let me here repeat the 'Editor's Note' that was inserted into that particular 'vox', which noted that:

a "Letter of Marque" was a device by which civilian vessels were specifically authorized to capture (and keep as a prize) the vessels of an enemy during time of war; a "Letter of Reprisal" was the equivalent during peacetime against a nation which had been seen as having, in some way, wronged the country issuing the Letter short of war. Treaties could be negotiated between Nation-States forbidding a country signatory to the Treaty from accepting such Letters of Marque and Reprisal from a third Nation-State with which either of the parties to said Treaty happened to be at war (the United States itself made such Treaties during the early 19th Century with most of the newly-independent republics of Latin America and the Caribbean, such provisions- at least in part- making possible the potential enforcement of the famous "Monroe Doctrine" opposed to interference in the Western Hemisphere by the so-called 'Great Powers' of Europe).

The Declaration at Paris in 1856 (officially, the first Convention on the International Law of Sea War) made Marque and Reprisal itself an offense against the Law of Nations. The United States of America was not a signatory to this original Convention (which was part of the negotiations [known as the Congress of Paris] which led to the Treaty that ended the Crimean War, in which the USofA had not been a belligerent) but- as the United States has been a signatory to a number of later Conventions covering this very topic, and in which it is assumed that the 1856 Paris Convention remains in force, the illegality of Marque and Reprisal is now (for the very reasons restated in the 9 February Commentary to which the writer of [this 14 February 2007] 'vox' has referred) generally considered to be "the Supreme Law of the Land" as regards the United States, despite the provisions of clause 11 of Article I, section 8 permitting such Letters.

As regards the above, I will only say here that I, myself, am not at all supportive of having the United States of America abrogate, or otherwise nullify and/or repudiate, Treaties to which it has already become a signatory-- though, of course, I well recognize that, as an independent Nation-State, the USA's inherent sovereignty gives it the same power to do so as is enjoyed by any other independent Nation-State, any number of which have, indeed, so abrogated and repudiated- or, at the very least, largely ignored- Treaty obligations. Insofar as such a power might be concerned, I can only note that, again, "we answer to a higher authority" [;-)] and that we Americans should, at the very least, make all due attempts to hold Our Nation to a rather high standard, for the United States ever acts in the name of 'We, the People' thereof...

it is, by the way, the very same reason why the terrorist suspects should be tried in accordance with ordinary Due Process (at least, as regards the 9/11 attacks on New York)!