Author: Henry Mark Holzer
Publication: HenryMarkHolzer.com
Date: February 6, 2003
Since September 11, 2001, much information
has come to light about our so-called ally, the family business called
Saudi Arabia: its quaint customs, like decapitation; its degradation of
women; its subservience to Wahhabism; its being an incubator for terrorists;
its financing terror attacks. What has not received enough attention, however,
despite the efforts of a few politicians and journalist, is the Saudi kidnapping
of American citizens.
The House of Representatives' Government
Reform Committee of Rep. Dan Burton (R. Indiana) has established beyond
any doubt that nearly a hundred American citizens are being held against
their will in Saudi Arabia - most of them girls or, by now, women. Many,
some of whom are boys, were abducted from their American mothers decades
ago by Saudi fathers. In Saudi Arabia, many have been physically abused
(e.g., rapes, beatings,) psychologically deprived (e.g. no contact with
mothers and siblings), forced to convert to Islam, and, if female, dumped
into arranged marriages even at the age of twelve.
Despite heroic efforts by the captives'
American parents, lawmakers, journalists, and others - the bureaucrats
in our Saudi-coddling State Department have, once again, proved to be willingly
impotent - United States citizens cannot leave Saudi Arabia. Indeed, probably
alone among nations of the world, Saudi Arabia prohibits all females from
leaving the country without the written consent of their husbands or fathers.
Is there no way to help our countrymen,
de facto imprisoned by a primitive regime that has not the slightest conception
of human rights? Perhaps.
In 1868 Congress enacted a statute
referred to as the "Hostage Act." It provides:
"Whenever it is made known to the
President that any citizen of the United States has been unjustly deprived
of his liberty by or under the authority of any foreign government, it
shall be the duty of the President forthwith to demand of that government
the reasons of such imprisonment; and if it appears to be wrongful and
in violation of the rights of American citizenship, the President shall
forthwith demand the release of such citizen, and if the release so demanded
is unreasonably delayed or refused the President shall use such means,
not amounting to acts of war and not otherwise prohibited by law, as he
may think necessary and proper to obtain or effectuate the release; and
all the facts and proceedings relative thereto shall as soon a practicable
be communicated by the President to Congress." (Emphasis added).
Facially, the Hostage Act applies
to the shameful situation created and fostered by the Saudi government:
President Bush, through his Department of State, has official knowledge
that American citizens are being unjustly deprived of their liberty by
a foreign government. Even conceding for purpose of argument, but only
for that purpose, that the President has discharged his duty under the
Act by demanding to know the reasons why these Americans are being held
by Saudi Arabia, no case-by-case official explanation has been forthcoming
from the Saudi government. This means the President has the statutory duty
"forthwith to demand of [the Saudi] government the reasons of such imprisonment."
But who can force him to, especially
in light of the fundamental constitutional principle of separation of powers,
making the three branches of government co-equal? In other words, can either
Congress or the courts compel the President to demand information from
the Saudis - especially in light of the impending attack on Iraq? Certainly,
Congress can't, since it possesses the power only to legislate. That leaves
the courts.
Only six cases, not one of them
in the Supreme Court of the United States, have addressed the interpretation
of the Hostage Act. Of those six, only four shed any light on the courts'
power to interfere with the president, either as Chief Executive or Commander-in-Chief
under Article II of the Constitution.
While in Worthy v. Herter, decided
in 1959, a federal appellate court ruled that extricating a United States
citizen from a foreign country was within the powers of the President to
conduct foreign affairs, the case tells us nothing about how his duty under
the Hostage Act is to be discharged, nor how far a court can go to compel
him to discharge that duty.
In Smith v. Regan, a 1988 decision
of the United States Court of Appeals for the Fourth Circuit, relatives
of Vietnam MIAs tried to get a federal court to conduct an independent
investigation into the status of their missing loved ones. The appeals
court held that the case presented a non-judicial "political question"
- an issue within the province and competence, not of the judiciary under
Article III of the Constitution, but rather the business either of Congress
under Article II, or the Chief Executive/Commander-in-Chief under Article
II.
It is the third and fourth cases
that provide the only available guidance concerning the President's duty
under the Hostage Act.
In Redpath v. Kissinger, decided
in 1976 by a federal district court in Texas, an American citizen was jailed
in Mexico. The Department of State conducted an investigation. Not surprisingly,
the paper-pushers concluded that their imprisoned countryman's arrest and
conviction were lawful, and that his treatment was acceptable (at least
to the bureaucrats safe in Washington, DC). Redpath went to court. The
court ruled that there was nothing more it could do because, in inquiring
about Redpath's situation, the government had discharged its duty "to demand
of [the Mexican] government the reasons of such imprisonment." Since, per
the Hostage Act, the government had not found that imprisonment have been
"wrongful and in violation of the rights of American citizenship," under
the statute there was nothing more to be done.
In the 1984 case of Flynn v. Schultz,
the United States Court of Appeals for the Seventh Circuit ruled that the
political question doctrine did not prevent a federal court from considering
Flynn's claim that, under the Hostage Act, the Secretary of State had the
duty to inquire whether the deprivation of liberty of an American citizen
convicted and imprisoned in Mexico was wrongful, and that in fact the Secretary
had failed to satisfy the Executive Branch's duty of inquiry.
Together, the Redpath and Flynn
cases provide a glimmer of hope for the Americans currently held against
their will in Saudi Arabia because those courts ruled that they did possess
jurisdiction, at least to the extent of assuring that the Executive Branch
had done its job -reasonable inquiry - under the Hostage Act.
On behalf of our countrymen and
women held against their will in Saudi Arabia - some still minors - we
must insist that the Executive Branch of the United States government,
through the Department of State, "forthwith . . . demand" of the Saudis
an explanation of each case, and why our people cannot leave that country.
If their status "appears to be wrongful and in violation of the rights
of American citizenship," our President must "forthwith demand the release
of such citizens." If no inquiry is made, he must be taken to court. If
one is made, and - as will certainly be the case because Saudi Arabia treats
people, especially women and children as chattel - their detention is found
to be unjustified, and "the release so demanded is unreasonably delayed
or refused," then, under the Hostage Act, "the President shall use such
means, not amounting to acts of war . . . as he may think necessary and
proper to obtain or effectuate the release" of our people.
While the claims of unlawful detention
of Americans in some countries may be without merit, the cries of our citizens
from behind the walls of Saudi Arabia's closed society are now too loud
and anguished for our government to ignore - especially given the key to
their release provided by the venerable Hostage Act.
(Henry Mark Holzer, Professor Emeritus
at Brooklyn Law School, is a constitutional and appellate lawyer. His newest
book, co-authored with Erika Holzer, Fake Warriors: Identifying, Exposing,
and Punishing Those Who Falsify Their Military Service, will be published
in 2003. Email him at hank@henrymarkholzer.com or go to HenryMarkHolzer.com.)
