OCTOBER TERM, 1991
Syllabus
UNITED STATES
v. ALVAREZ-MACHAIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-712. Argued April 1, 1992-Decided June 15, 1992
Respondent, a citizen and resident of Mexico, was forcibly
kidnaped from his home and flown by private plane to Texas, where
he was arrested for his participation in the kidnaping and murder
of a Drug Enforcement Administration (DEA) agent and the agent's
pilot. After concluding that DEA agents were responsible for the
abduction, the District Court dismissed the indictment on the
ground that it violated the Extradition Treaty between the United
States and Mexico (Extradition Treaty or Treaty), and ordered
respondent's repatriation. The Court of Appeals affirmed. Based on
one of its prior decisions, the court found that, since the United
States had authorized the abduction and since the Mexican
Government had protested the Treaty violation, jurisdiction was
improper.
Held: The fact of respondent's forcible abduction does
not prohibit his trial in a United States court for violations of
this country's criminal laws. Pp. 659-670.
(a) A defendant may not be prosecuted in violation of the terms
of an extradition treaty.
United States v.
Rauscher,
119 U. S. 407.
However, when a treaty has not been invoked, a court may properly
exercise jurisdiction even though the defendant's presence is
procured by means of a forcible abduction.
Ker v.
Illinois, 119
U. S. 436. Thus, if the Extradition Treaty does not prohibit
respondent's abduction, the rule of
Ker applies and
jurisdiction was proper. Pp. 659-662.
(b) Neither the Treaty's language nor the history of
negotiations and practice under it supports the proposition that it
prohibits abductions outside of its terms. The Treaty says nothing
about either country refraining from forcibly abducting people from
the other's territory or the consequences if an abduction occurs.
In addition, although the Mexican Government was made aware of the
Ker doctrine as early as 1906, and language to curtail
Ker was drafted as early as 1935, the Treaty's current
version contains no such clause. Pp. 663-666.
(c) General principles of international law provide no basis for
interpreting the Treaty to include an implied term prohibiting
international abductions. It would go beyond established precedent
and practice to draw such an inference from the Treaty based on
respondent's argument that abductions are so clearly prohibited in
international law that there
656
Syllabus
was no reason to include the prohibition in the Treaty itself.
It was the practice of nations with regard to extradition treaties
that formed the basis for this Court's decision in
Rauscher,
supra, to imply a term in the extradition treaty between the
United States and England. Respondent's argument, however, would
require a much larger inferential leap with only the most general
of international law principles to support it. While respondent may
be correct that his abduction was "shocking" and in violation of
general international law principles, the decision whether he
should be returned to Mexico, as a matter outside the Treaty, is a
matter for the Executive Branch. Pp. 666-670.
946 F.2d
1466, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR,
JJ., joined,
post, p. 670.
Solicitor General Starr argued the cause for the United States.
With him on the briefs were Assistant Attorney General Mueller,
Deputy Solicitor General Bryson, Michael R. Dreeben, and Kathleen
A. Felton.
Paul L. Hoffman argued the cause for respondent. With him on the
brief were Ralph G. Steinhardt, Robin S. Toma, Mark D. Rosenbaum,
John A. Powell, Steven R. Shapiro, Kate Martin, and Robert
Steinberg.
*
* Kent S.
Scheidegger and
Charles L.
Hobson filed a brief for the Criminal Justice Legal Foundation
as
amicus curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the Government of Canada by
Axel Kleiboemer; for the United
Mexican States by
Bruno A. Ristau and
Michael Abbell;
for the Allard K. Lowenstein International Human Rights Clinic et
al. by
Harold Hongju Koh, Michael Ratner, Peter Weiss, and
David Cole; for the Association of the Bar of the City of
New York by
Sidney S.
Rosdeitcher; for the
International Human Rights Law Group by
Paul Nielson and
Steven M. Schneebaum; for the Lawyers Committee for Human
Rights by
Ruth Wedgwood; for the Minnesota Lawyers
International Human Rights Committee by
David S.
Weissbrodt; and for Rene Martin Verdugo-Urquidez by
Patrick Q. Hall and
Charles L.
Goldberg.
Kenneth Roth and Stephen M. Kristovich filed a brief for
Americas Watch as amicus curiae.
657
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The issue in this case is whether a criminal defendant, abducted
to the United States from a nation with which it has an extradition
treaty, thereby acquires a defense to the jurisdiction of this
country's courts. We hold that he does not, and that he may be
tried in federal district court for violations of the criminal law
of the United States.
Respondent, Humberto Alvarez-Machain, is a citizen and resident
of Mexico. He was indicted for participating in the kidnap and
murder of United States Drug Enforcement Administration (DEA)
special agent Enrique Camarena-Salazar and a Mexican pilot working
with Camarena, Alfredo ZavalaAvelar.1 The DEA believes that
respondent, a medical doctor, participated in the murder by
prolonging Agent Camarena's life so that others could further
torture and interrogate him. On April 2, 1990, respondent was
forcibly kidnaped from his medical office in Guadalajara, Mexico,
to be flown by private plane to EI Paso, Texas, where he was
arrested by DEA officials. The District Court concluded that DEA
agents were responsible for respondent's abduction, although they
were not personally involved in it.
United States v.
Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal.
1990).2
1 Respondent is charged in a sixth superseding indictment with:
conspiracy to commit violent acts in furtherance of racketeering
activity (in violation of 18 U. S. C. §§ 371, 1959); committing
violent acts in furtherance of racketeering activity (in violation
of § 1959(a)(2)); conspiracy to kidnap a federal agent (in
violation of §§ 1201(a)(5), (c)); kidnap of a federal agent (in
violation of § 1201(a)(5)); and felony murder of a federal agent
(in violation of §§ 1111(a), 1114). App. 12-32.
2 Apparently, DEA officials had attempted to gain respondent's
presence in the United States through informal negotiations with
Mexican officials, but were unsuccessful. DEA officials then,
through a contact in Mexico, offered to pay a reward and expenses
in return for the delivery of respondent to the United States.
United States v.
Caro-Quintero, 745 F. Supp., at
602-604.
658
Respondent moved to dismiss the indictment, claiming that his
abduction constituted outrageous governmental conduct, and that the
District Court lacked jurisdiction to try him because he was
abducted in violation of the extradition treaty between the United
States and Mexico. Extradition Treaty, May 4, 1978, [1979] United
States-United Mexican States, 31 U. S. T. 5059, T. 1. A. S. No.
9656 (Extradition Treaty or Treaty). The District Court rejected
the outrageous governmental conduct claim, but held that it lacked
jurisdiction to try respondent because his abduction violated the
Extradition Treaty. The District Court discharged respondent and
ordered that he be repatriated to Mexico. 745
The Court of Appeals affirmed the dismissal of the indictment
and the repatriation of respondent, relying on its decision in
United States v.
Verdugo-Urquidez, 939 F.2d
1341 (CA9 1991), cert. pending, No. 91-670.
946 F.2d
1466 (1991). In
Verdugo, the Court of Appeals held that
the forcible abduction of a Mexican national with the authorization
or participation of the United States violated the Extradition
Treaty between the United States and Mexico.3 Although the Treaty
does not expressly prohibit such abductions, the Court of Appeals
held that the "purpose" of the Treaty was violated by a forcible
abduction, 939 F. 2d, at 1350, which, along with a formal protest
by the offended nation, would give a defendant the right to invoke
the Treaty violation to defeat jurisdiction of the District Court
to try him.4 The Court of Appeals further held that the proper
remedy for
3 Rene Martin Verdugo-Urquidez was also indicted for the murder
of Agent Camarena. In an earlier decision, we held that the Fourth
Amendment did not apply to a search by United States agents of
VerdugoUrquidez' home in Mexico.
United States v.
Verdugo-Urquidez, 494 U. S. 259 (1990).
4 The Court of Appeals remanded for an evidentiary hearing as to
whether Verdugo's abduction had been authorized by authorities in
the United States.
United States v.
Verdugo-Urquidez,
939 F. 2d, at 1362.
659
such a violation would be dismissal of the indictment and
repatriation of the defendant to Mexico.
In the instant case, the Court of Appeals affirmed the District
Court's finding that the United States had authorized the abduction
of respondent, and that letters from the Mexican Government to the
United States Government served as an official protest of the
Treaty violation. Therefore, the Court of Appeals ordered that the
indictment against respondent be dismissed and that respondent be
repatriated to Mexico. 946 F. 2d, at 1467. We granted certiorari,
502 U. S. 1024 (1992), and now reverse.
Although we have never before addressed the precise issue raised
in the present case, we have previously considered proceedings in
claimed violation of an extradition treaty and proceedings against
a defendant brought before a court by means of a forcible
abduction. We addressed the former issue in
United States v.
Rauscher, 119
U. S. 407 (1886); more precisely, the issue whether the
Webster-Ashburton Treaty of 1842, 8 Stat. 576, which governed
extraditions between England and the United States, prohibited the
prosecution of defendant Rauscher for a crime other than the crime
for which he had been extradited. Whether this prohibition, known
as the doctrine of specialty, was an intended part of the treaty
had been disputed between the two nations for some time.
Rauscher, 119 U. S., at 411. Justice Miller delivered the
opinion of the Court, which carefully examined the terms and
history of the treaty; the practice of nations in regards to
extradition treaties; the case law from the States; and the
writings of commentators, and reached the following conclusion:
"[A] person who has been brought within the jurisdiction of the
court by virtue of proceedings under an extradition treaty,
can only be tried for one of the offences described in that treaty,
and for the offence with which he is charged in the proceedings for
his extradition, until a reasonable time and opportunity have been
given him,
660
after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those
proceedings." Id., at 430 (emphasis added).
In addition, Justice Miller's opinion noted that any doubt as to
this interpretation was put to rest by two federal statutes which
imposed the doctrine of specialty upon extradition treaties to
which the United States was a party.
Id., at 423.5 Unlike
the case before us today, the defendant in
Rauscher had been
brought to the United States by way of an extradition treaty; there
was no issue of a forcible abduction.
In
Ker v.
Illinois, 119 U. S. 436 (1886),
also written by Justice Miller and decided the same day as
Rauscher, we addressed the issue of a defendant brought
before the court by way of a forcible abduction. Frederick Ker had
been tried and convicted in an Illinois court for larceny; his
presence before the court was procured by means of forcible
abduction from Peru. A messenger was sent to Lima with the proper
warrant to demand Ker by virtue of the extradition treaty between
Peru and the United States. The messenger, however, disdained
reliance on the treaty processes, and instead forcibly kidnaped Ker
and brought him to the United States.6 We distinguished Ker's case
from
Rauscher, on the basis that Ker was not brought into
the United States by virtue of the extradition treaty between the
United States and Peru, and rejected Ker's argument that he had a
right
5 Justice Gray, concurring, would have rested the decision on
the basis of these Acts of Congress alone.
Rauscher, 119 U.
S., at 433. Chief Justice Waite dissented, concluding that the
treaty did not forbid trial on a charge other than that on which
extradition was granted, and that the Acts of Congress did not
change the "effect of the treaty."
Id., at 436.
6 Although the opinion does not explain why the messenger failed
to present the warrant to the proper authorities, commentators have
suggested that the seizure of Ker in the aftermath of a revolution
in Peru provided the messenger with no "proper authorities" to whom
the warrant could be presented. See Kester, Some Myths of United
States Extradition Law, 76 Geo. L. J. 1441, 1451 (1988).
661
under the extradition treaty to be returned to this country only
in accordance with its terms.7 We rejected Ker's due process
argument more broadly, holding in line with "the highest
authorities" that "such forcible abduction is no sufficient reason
why the party should not answer when brought within the
jurisdiction of the court which has the right to try him for such
an offence, and presents no valid objection to his trial in such
court."
Ker, supra, at 444.
In
Frisbie v.
Collins, 342 U. S. 519, rehearing
denied,
343 U. S.
937 (1952), we applied the rule in
Ker to a case in
which the defendant had been kidnaped in Chicago by Michigan
officers and brought to trial in Michigan. We upheld the conviction
over objections based on the Due Process Clause and the federal
Kidnaping Act and stated:
"This Court has never departed from the rule announced in
[Ker] that the power of a court to try a person for crime is
not impaired by the fact that he had been brought within the
court's jurisdiction by reason of a 'forcible abduction.' No
persuasive reasons are now presented to justify overruling this
line of cases. They
7 In the words of Justice Miller, the "treaty was not called
into operation, was not relied upon, was not made the pretext of
arrest, and the facts show that it was a clear case of kidnapping
within the dominions of Peru, without any pretence of authority
under the treaty or from the government of the United States."
Ker v.
Illinois, 119 U. S., at 443.
Two cases decided during the Prohibition Era in this country
have dealt with seizures claimed to have been in violation of a
treaty entered into between the United States and Great Britain to
assist the United States in offshore enforcement of its prohibition
laws, and to allow British passenger ships to carry liquor while in
the waters of the United States. 43 Stat. 1761 (1924). The history
of the negotiations leading to the treaty is set forth in
Cook v.
United States, 288 U. S. 102, 111-118
(1933). In that case we held that the treaty provision for seizure
of British vessels operating beyond the 3-mile limit was intended
to be exclusive, and that therefore liquor seized from a British
vessel in violation of the treaty could not form the basis of a
conviction.
In
Ford v.
United States, 273 U. S. 593 (1927), the
argument as to personal jurisdiction was deemed to have been
waived.
662
rest on the sound basis that due process of law is satisfied
when one present in court is convicted of crime after having been
fairly apprized of the charges against him and after a fair trial
in accordance with constitutional procedural safeguards. There is
nothing in the Constitution that requires a court to permit a
guilty person rightfully convicted to escape justice because he was
brought to trial against his will." Frisbie, supra, at 522
(citation and footnote omitted).8
The only differences between
Ker and the present case are
that
Ker was decided on the premise that there was no
governmental involvement in the abduction, 119 U. S., at 443; and
Peru, from which Ker was abducted, did not object to his
prosecution.9 Respondent finds these differences to be dispositive,
as did the Court of Appeals in
Verdugo, 939 F. 2d, at 1346,
contending that they show that respondent's prosecution, like the
prosecution of Rauscher, violates the implied terms of a valid
extradition treaty. The Government, on the other hand, argues that
Rauscher stands as an "exception" to the rule in
Ker
only when an extradition treaty is invoked, and the terms of the
treaty provide that its breach will limit the jurisdiction of a
court. Brief for United States 17. Therefore, our first inquiry
must be whether the abduction of respondent from Mexico violated
the Extradition Treaty between the United States and Mexico. If we
conclude that the Treaty does not prohibit respondent's abduction,
the rule in
Ker applies, and the court need not inquire as
to how respondent came before it.
8We have applied
Ker to numerous cases where the presence
of the defendant was obtained by an interstate abduction. See,
e. g., Mahon v.
Justice, 127 U. S. 700 (1888);
Cook v.
Hart, 146 U. S. 183 (1892);
Pettibone
9 Ker also was not a national of Peru, whereas respondent is a
national of the country from which he was abducted. Respondent
finds this difference to be immaterial. Tr. of Oral Arg. 26.
663
In construing a treaty, as in construing a statute, we first
look to its terms to determine its meaning.
Air France v.
Saks, 470 U.
S. 392, 397 (1985);
Valentine v.
United States ex
rel. Neidecker, 299
U. S. 5, 11 (1936). The Treaty says nothing about the
obligations of the United States and Mexico to refrain from
forcible abductions of people from the territory of the other
nation, or the consequences under the Treaty if such an abduction
occurs. Respondent submits that Article 22(1) of the Treaty, which
states that it "shall apply to offenses specified in Article 2
[including murder] committed before and after this Treaty enters
into force," 31 U. S. T., at 5073-5074, evidences an intent to make
application of the Treaty mandatory for those offenses. However,
the more natural conclusion is that Article 22 was included to
ensure that the Treaty was applied to extraditions requested after
the Treaty went into force, regardless of when the crime of
extradition occurred.10
More critical to respondent's argument is Article 9 of the
Treaty, which provides:
"1. Neither Contracting Party shall be bound to deliver up its
own nationals, but the executive authority of the requested Party
shall, if not prevented by the laws of that Party, have the power
to deliver them up if, in its discretion, it be deemed proper to do
so.
"2. If extradition is not granted pursuant to paragraph 1 of
this Article, the requested Party shall submit the case to its
competent authorities for the purpose of prosecution, provided that
Party has jurisdiction over the offense." Id., at 5065.
10 This interpretation is supported by the second clause of
Article 22, which provides that "[r]equests for extradition that
are under process on the date of the entry into force of this
Treaty, shall be resolved in accordance with the provisions of the
Treaty of 22 February, 1899, .... " Extradition Treaty, May 4,
1978, [1979] United States-United Mexican States, 31 U. S. T. 5059,
5074, T. I. A. S. No. 9656.
664
According to respondent, Article 9 embodies the terms of the
bargain which the United States struck: If the United States wishes
to prosecute a Mexican national, it may request that individual's
extradition. Upon a request from the United States, Mexico may
either extradite the individual or submit the case to the proper
authorities for prosecution in Mexico. In this way, respondent
reasons, each nation preserved its right to choose whether its
nationals would be tried in its own courts or by the courts of the
other nation. This preservation of rights would be frustrated if
either nation were free to abduct nationals of the other nation for
the purposes of prosecution. More broadly, respondent reasons, as
did the Court of Appeals, that all the processes and restrictions
on the obligation to extradite established by the Treaty would make
no sense if either nation were free to resort to forcible kidnaping
to gain the presence of an individual for prosecution in a manner
not contemplated by the Treaty.
Verdugo, supra, at 1350.
We do not read the Treaty in such a fashion. Article 9 does not
purport to specify the only way in which one country may gain
custody of a national of the other country for the purposes of
prosecution. In the absence of an extradition treaty, nations are
under no obligation to surrender those in their country to foreign
authorities for prosecution.
Rauscher, 119 U. S., at
411-412;
Factor v.
Laubenheimer, 290 U. S. 276, 287
(1933); cf.
Valentine v.
United States ex rel. Neidecker,
supra, at 8-9 (United States may not extradite a citizen in the
absence of a statute or treaty obligation). Extradition treaties
exist so as to impose mutual obligations to surrender individuals
in certain defined sets of circumstances, following established
procedures. See 1 J. Moore, A Treatise on Extradition and
Interstate Rendition § 72 (1891). The Treaty thus provides a
mechanism which would not otherwise exist, requiring, under certain
circumstances, the United States and Mexico to extradite
individuals to the
665
other country, and establishing the procedures to be followed
when the Treaty is invoked.
The history of negotiation and practice under the Treaty also
fails to show that abductions outside of the Treaty constitute a
violation of the Treaty. As the Solicitor General notes, the
Mexican Government was made aware, as early as 1906, of the
Ker doctrine, and the United States' position that it
applied to forcible abductions made outside of the terms of the
United States-Mexico Extradition TreatyY Nonetheless, the current
version of the Treaty, signed in 1978, does not attempt to
establish a rule that would in any way curtail the effect of
Ker.12 Moreover, although language which would grant
individuals exactly the right sought by respondent had been
considered and drafted as
11 In correspondence between the United States and Mexico
growing out of the 1905 Martinez incident, in which a Mexican
national was abducted from Mexico and brought to the United States
for trial, the Mexican Charge wrote to the Secretary of State
protesting that as Martinez' arrest was made outside of the
procedures established in the extradition treaty, "the action
pending against the man can not rest [on] any legal foundation."
Letter of Balbino Davalos to Secretary of State, reprinted in
Papers Relating to the Foreign Relations of the United States, H.
R. Doc. No.1, 59th Cong., 2d Sess., pt. 2, p. 1121 (1906). The
Secretary of State responded that the exact issue raised by the
Martinez incident had been decided by
Ker, and that the
remedy open to the Mexican Government, namely, a request to the
United States for extradition of Martinez' abductor, had been
granted by the United States. Letter of Robert Bacon to Mexican
Charge, reprinted in Papers Relating to the Foreign Relations of
the United States, H. R. Doc. No.1,
supra, at 1121-1122.
Respondent and the Court of Appeals stress a statement made in
1881 by Secretary of State James Blaine to the Governor of Texas to
the effect that the extradition treaty in its form at that time did
not authorize unconsented to abductions from Mexico.
Verdugo, 939 F. 2d, at 1354; Brief for Respondent 14. This
misses the mark, however, for the Government's argument is not that
the Treaty authorizes the abduction of respondent, but that the
Treaty does not prohibit the abduction.
12 The parties did expressly include the doctrine of specialty
in Article 17 of the Treaty, notwithstanding the judicial
recognition of it in
United States v.
Rauscher,
119 U. S. 407
(1886). 31 U. S. T., at 5071-5072.
666
early as 1935 by a prominent group of legal scholars sponsored
by the faculty of Harvard Law School, no such clause appears in the
current Treaty.13
Thus, the language of the Treaty, in the context of its history,
does not support the proposition that the Treaty prohibits
abductions outside of its terms. The remaining question, therefore,
is whether the Treaty should be interpreted so as to include an
implied term prohibiting prosecution where the defendant's presence
is obtained by means other than those established by the Treaty.
See
Valentine, 299 U. S., at 17 ("Strictly the question is
not whether there had been a uniform practical construction denying
the power, but whether the power had been so clearly recognized
that the grant should be implied").
Respondent contends that the Treaty must be interpreted against
the backdrop of customary international law, and that international
abductions are "so clearly prohibited in international law" that
there was no reason to include such a clause in the Treaty itself.
Brief for Respondent 11. The international censure of international
abductions is further evidenced, according to respondent, by the
United Nations Charter and the Charter of the Organization of
American States.
Id., at 17. Respondent does not argue that
these sources of international law provide an independent basis for
the right respondent asserts not to be tried in the United States,
but rather that they should inform the interpretation of the Treaty
terms.
13 In Article 16 of the Draft Convention on Jurisdiction with
Respect to Crime, the Advisory Committee of the Research in
International Law proposed:
"In exercising jurisdiction under this Convention, no State
shall prosecute or punish any person who has been brought within
its territory or a place subject to its authority by recourse to
measures in violation of internationallaw or international
convention without first obtaining the consent of the State or
States whose rights have been violated by such measures." Harvard
Research in International Law, 29 Am. J. Int'l L. 442 (Supp.
1935).
667
The Court of Appeals deemed it essential, in order for the
individual defendant to assert a right under the Treaty, that the
affected foreign government had registered a protest.
Verdugo, 939 F. 2d, at 1357 ("[I]n the kidnapping case there
must be a formal protest from the offended government after the
kidnapping"). Respondent agrees that the right exercised by the
individual is derivative of the nation's right under the Treaty,
since nations are authorized, notwithstanding the terms of an
extradition treaty, to voluntarily render an individual to the
other country on terms completely outside of those provided in the
treaty. The formal protest, therefore, ensures that the "offended"
nation actually objects to the abduction and has not in some way
voluntarily rendered the individual for prosecution. Thus the
Extradition Treaty only prohibits gaining the defendant's presence
by means other than those set forth in the Treaty when the nation
from which the defendant was abducted objects.
This argument seems to us inconsistent with the remainder of
respondent's argument. The Extradition Treaty has the force of law,
and if, as respondent asserts, it is selfexecuting, it would appear
that a court must enforce it on behalf of an individual regardless
of the offensiveness of the practice of one nation to the other
nation. In
Rauscher, the Court noted that Great Britain had
taken the position in other cases that the Webster-Ashburton Treaty
included the doctrine of specialty, but no importance was attached
to whether or not Great Britain had protested the prosecution of
Rauscher for the crime of cruel and unusual punishment as opposed
to murder.
More fundamentally, the difficulty with the support respondent
garners from international law is that none of it relates to the
practice of nations in relation to extradition treaties. In
Rauscher, we implied a term in the WebsterAshburton Treaty
because of the practice of nations with regard to extradition
treaties. In the instant case, respond-
668
ent would imply terms in the Extradition Treaty from the
practice of nations with regards to international law more
generally. 14 Respondent would have us find that the Treaty acts as
a prohibition against a violation of the general principle of
international law that one government may not "exercise its police
power in the territory of another state." Brief for Respondent 16.
There are many actions which could be taken by a nation that would
violate this principle, including waging war, but it cannot
seriously be contended that an invasion of the United States by
Mexico would violate the terms of the Extradition Treaty between
the two nations.15
In sum, to infer from this Treaty and its terms that it
prohibits all means of gaining the presence of an individual
14 Similarly, the Court of Appeals in
Verdugo reasoned
that international abductions violate the "purpose" of the Treaty,
stating that "[t]he requirements extradition treaties impose
constitute a means of safeguarding the sovereignty of the signatory
nations, as well as ensuring the fair treatment of individuals."
939 F. 2d, at 1350. The ambitious purpose ascribed to the Treaty by
the Court of Appeals, we believe, places a greater burden on its
language and history than they can logically bear. In a broad
sense, most international agreements have the common purpose of
safeguarding the sovereignty of signatory nations, in that they
seek to further peaceful relations between nations. This, however,
does not mean that the violation of any principle of international
law constitutes a violation of this particular treaty.
15 In the same category are the examples cited by respondent in
which, after a forcible international abduction, the offended
nation protested the abduction and the abducting nation then
returned the individual to the protesting nation. Brief for
Respondent 18, citing,
inter alia, 1 Bassiouni,
International Extradition: United States Law and Practice § 5.4,
pp. 235237 (2d rev. ed. 1987). These may show the practice of
nations under customary international law, but they are of little
aid in construing the terms of an extradition treaty, or the
authority of a court to later try an individual who has been so
abducted. More to the point for our purposes are cases such as
The Richmond, 9 Cranch 102 (1815), and
The Merino, 9
Wheat. 391 (1824), both of which hold that a seizure of a vessel in
violation of international law does not affect the jurisdiction of
a United States court to adjudicate rights in connection with the
vessel. These cases are discussed, and distinguished, in
Cook v.
United States, 288 U. S., at 122.
669
outside of its terms goes beyond established precedent and
practice. In
Rauscher, the implication of a doctrine of
specialty into the terms of the Webster-Ashburton Treaty, which, by
its terms, required the presentation of evidence establishing
probable cause of the crime of extradition before extradition was
required, was a small step to take. By contrast, to imply from the
terms of this Treaty that it prohibits obtaining the presence of an
individual by means outside of the procedures the Treaty
establishes requires a much larger inferential leap, with only the
most general of international law principles to support it. The
general principles cited by respondent simply fail to persuade us
that we should imply in the United States-Mexico Extradition Treaty
a term prohibiting international abductions.
Respondent and his
amici may be correct that respondent's
abduction was "shocking," Tr. of Oral Arg. 40, and that it may be
in violation of general international law principles. Mexico has
protested the abduction of respondent through diplomatic notes,
App. 33-38, and the decision of whether respondent should be
returned to Mexico, as a matter outside of the Treaty, is a matter
for the Executive Branch.16 We
16 The Mexican Government has also requested from the United
States the extradition of two individuals it suspects of having
abducted respondent in Mexico, on charges of kidnaping. App.
39-66.
The advantage of the diplomatic approach to the resolution of
difficulties between two sovereign nations, as opposed to
unilateral action by the courts of one nation, is illustrated by
the history of the negotiations leading to the treaty discussed in
Cook v.
United States, supra. The United States was
interested in being able to search British vessels that hovered
beyond the 3-mile limit and served as supply ships for motor
launches, which took intoxicating liquor from them into ports for
further distribution in violation of prohibition laws. The United
States initially proposed that both nations agree to searches of
the other's vessels beyond the 3mile limit; Great Britain rejected
such an approach, since it had no prohibition laws and therefore no
problem with United States vessels hovering just beyond its
territorial waters. The parties appeared to be at loggerheads; then
this Court decided
Cunard S. S.
Co. v.
Mellon,
262 U. S. 100
(1923), holding that our prohibition laws applied to foreign
merchant ves-
670
conclude, however, that respondent's abduction was not in
violation of the Extradition Treaty between the United States and
Mexico, and therefore the rule of
Ker v.
Illinois is
fully applicable to this case. The fact of respondent's forcible
abduction does not therefore prohibit his trial in a court in the
United States for violations of the criminal laws of the United
States.
The judgment of the Court of Appeals is therefore reversed, and
the case is remanded for further proceedings consistent with this
opinion.
So ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR
join, dissenting.
The Court correctly observes that this case raises a question of
first impression. See
ante, at 659. The case is unique for
several reasons. It does not involve an ordinary abduction by a
private kidnaper, or bounty hunter, as in
Ker v.
Illinois, 119
U. S. 436 (1886); nor does it involve the apprehension of an
American fugitive who committed a crime in one State and sought
asylum in another, as in
Frisbie v.
Collins, 342 U. S. 519 (1952).
Rather, it involves this country's abduction of another country's
citizen; it also involves a violation of the territorial integrity
of that other country, with which this country has signed an
extradition treaty.
A Mexican citizen was kidnaped in Mexico and charged with a
crime committed in Mexico; his offense allegedly violated both
Mexican and American law. Mexico has formally
sels as well as domestic within the territorial waters of the
United States, and that therefore the carrying of intoxicating
liquors by foreign passenger ships violated those laws. A treaty
was then successfully negotiated, giving the United States the
right to seizure beyond the 3-mile limit (which it desired), and
giving British passenger ships the right to bring liquor into
United States waters so long as the liquor supply was sealed while
in those waters (which Great Britain desired).
Cook v.
United States, supra.
671
demanded on at least two separate occasions 1 that he be
returned to Mexico and has represented that he will be prosecuted
and, if convicted, punished for his offense.2 It is clear that
Mexico's demand must be honored if this official abduction violated
the 1978 Extradition Treaty between the United States and Mexico.
In my opinion, a fair reading of the treaty in light of our
decision in
United States v.
Rauscher, 119 U. S. 407 (1886), and
applicable principles of international law, leads inexorably to the
conclusion that the District Court,
United States v.
Caro-Quintero, 745 F. Supp. 599 (CD Cal. 1990), and the
Court of Appeals for the Ninth Circuit,
946 F.2d
1466 (1991)
(per curiam), correctly construed that
instrument.
I
The extradition treaty with Mexico3 is a comprehensive document
containing 23 articles and an appendix listing the
1 The abduction of respondent occurred on April 2, 1990.
United States v.
Caro-Quintero, 745 F. Supp. 599,603
(CD Cal. 1990). Mexico responded quickly and unequivocally. Tr. of
Oral Arg. 33; Brief for Respondent 3. On April 18, 1990, Mexico
requested an official report on the role of the United States in
the abduction, and on May 16, 1990, and July 19, 1990, it sent
diplomatic notes of protest from the Embassy of Mexico to the
United States Department of State. See Brief for United Mexican
States as
Amicus Curiae (Mexican
Amicus) 5-6; App. to
Mexican
Amicus 1a-24a. In the May 16th note, Mexico said
that it believed that the abduction was "carried out with the
knowledge of persons working for the U. S. government, in violation
of the procedure established in the extradition treaty in force
between the two countries,"
id., at 5a, and in the July 19th
note, it requested the provisional arrest and extradition of the
law enforcement agents allegedly involved in the abduction.
Id., at 9a-15a.
2 Mexico has already tried a number of members involved in the
conspiracy that resulted in the murder of the Drug Enforcement
Administration agent. For example, Rafael Caro-Quintero, a
co-conspirator of AlvarezMachain in this case, has already been
imprisoned in Mexico on a 40-year sentence. See Brief for Lawyers
Committee for Human Rights as
Amicus Curiae 4.
3 Extradition Treaty, May 4, 1978, [1979] United States-United
Mexican States, 31 U. S. T. 5059, T. I. A. S. No. 9656 (Treaty or
Extradition Treaty).
672
extraditable offenses covered by the agreement. The parties
announced their purpose in the preamble: The two governments desire
"to cooperate more closely in the fight against crime and, to this
end, to mutually render better assistance in matters of
extradition." 4 From the preamble, through the description of the
parties' obligations with respect to offenses committed within as
well as beyond the territory of a requesting party,5 the
delineation of the procedures and evidentiary requirements for
extradition,6 the spe-
4
Id., at 5061. In construing a treaty, the Court has the
"responsibility to give the specific words of the treaty a meaning
consistent with the shared expectations of the contracting
parties."
Air France v.
Saks, 470 U. S. 392, 399
(1985). It is difficult to see how an interpretation that
encourages unilateral action could foster cooperation and mutual
assistance-the stated goals of the Treaty. See also Presidential
Letter of Transmittal attached to Senate Advice and Consent 3
(Treaty would "make a significant contribution to international
cooperation in law enforcement").
Extradition treaties prevent international conflict by providing
agreedupon standards so that the parties may cooperate and avoid
retaliatory invasions of territorial sovereignty. According to one
writer, before extradition treaties became common, European states
often granted asylum to fugitives from other states, with the
result that "a sovereign could enforce the return of fugitives only
by force of arms .... Extradition as an inducement to peaceful
relations and friendly cooperation between states remained of
little practical significance until after World War I." M.
Bassiouni, International Extradition and World Public Order 6
(1974). This same writer explained that such treaties further the
purpose of international law, which is "designed to protect the
sovereignty and territorial integrity of states, and [to] restrict
impermissible state conduct." 1 M. Bassiouni, International
Extradition: United States Law and Practice, ch. 5, § 2, p. 194 (2d
rev. ed. 1987).
The object of reducing conflict by promoting cooperation
explains why extradition treaties do not prohibit informal
consensual delivery of fugitives, but why they do prohibit
state-sponsored abductions. See Restatement (Third) of Foreign
Relations (Restatement) § 432, and Comments
a-c
(1987).
5 Treaty, 31 U. S. T., at 5062, 5063 (Articles 2 and 4).
6Id., at 5063, 5064-5065, 5066-5068, 5069 (Articles 3, 7,
10, 12, and 13).
673
cial provisions for political offenses and capital punishment,7
and other details, the Treaty appears to have been designed to
cover the entire subject of extradition. Thus, Article 22, entitled
"Scope of Application," states that the "Treaty shall apply to
offenses specified in Article 2 committed before and after this
Treaty enters into force," and Article 2 directs that
"[e]xtradition shall take place, subject to this Treaty, for
willful acts which fall within any of [the extraditable offenses
listed in] the clauses of the Appendix." 8 Moreover, as noted by
the Court,
ante, at 663, Article 9 expressly provides that
neither contracting party is bound to deliver up its own nationals,
although it may do so in its discretion, but if it does not do so,
it "shall submit the case to its competent authorities for purposes
of prosecution." 9
The Government's claim that the Treaty is not exclusive, but
permits forcible governmental kidnaping, would transform these, and
other, provisions into little more than verbiage. For example,
provisions requiring "sufficient" evidence to grant extradition
(Art. 3), withholding extradition for political or military
offenses (Art. 5), withholding extradition when the person sought
has already been tried (Art. 6), withholding extradition when the
statute of limitations for the crime has lapsed (Art. 7), and
granting the requested country discretion to refuse to extradite an
individual who would face the death penalty in the requesting
country (Art. 8), would serve little purpose if the requesting
country could simply kidnap the person. As the Court of Appeals for
the Ninth Circuit recognized in a related case, "[e]ach of these
provisions would be utterly frustrated if a kidnapping were held to
be a permissible course of governmental conduct."
United
States v.
Verdugo-Urquidez, 939 F.2d
1341, 1349 (1991). In addition, all of these provisions "only
make sense if they are understood as
requiring each treaty
signatory to
7Id., at 5063-5064, 5065 (Articles 5 and 8).
8Id.,
at 5073-5074, 5062.
9Id., at 5065.
674
comply with those procedures whenever it wishes to obtain
jurisdiction over an individual who is located in another treaty
nation."
Id., at 1351.
It is true, as the Court notes, that there is no express promise
by either party to refrain from forcible abductions in the
territory of the other nation. See
ante, at 664, 665-666.
Relying on that omission,lO the Court, in effect, concludes that
the Treaty merely creates an optional method of obtaining
jurisdiction over alleged offenders, and that the parties silently
reserved the right to resort to self-help whenever they deem force
more expeditious than legal process.ll If the United States, for
example, thought it more expedient to torture or simply to execute
a person rather than to attempt extradition, these options would be
equally available because they, too, were not explicitly prohibited
by the Treaty.12
10 The Court resorts to the same method of analysis as did the
dissent in
United States v.
Rauscher, 119 U. S. 407 (1886).
Chief Justice Waite would only recognize an explicit provision, and
in the absence of one, he concluded that the treaty did not require
that a person be tried only for the offense for which he had been
extradited: "The treaty requires a delivery up to justice, on
demand, of those accused of certain crimes, but says nothing about
what shall be done with them after the delivery has been made. It
might have provided that they should not be tried for any other
offences than those for which they were surrendered, but it has
not."
Id., at 434. That approach was rejected by the Court
in
Rauscher and should also be rejected by the Court
here.
11 To make the point more starkly, the Court has, in effect,
written into Article 9 a new provision, which says:
"Notwithstanding paragraphs 1 and 2 of this Article, either
Contracting Party can, without the consent of the other, abduct
nationals from the territory of one Party to be tried in the
territory of the other."
12 It is ironic that the United States has attempted to justify
its unilateral action based on the kidnaping, torture, and murder
of a federal agent by authorizing the kidnaping of respondent, for
which the American law enforcement agents who participated have now
been charged by Mexico. See App. to Mexican
Amicus 5a. This
goes to my earlier point, see n. 4,
supra, that extradition
treaties promote harmonious relations by providing for the orderly
surrender of a person by one state to another, and without such
treaties, resort to force often followed.
675
That, however, is a highly improbable interpretation of a
consensual agreement,13 which on its face appears to have been
intended to set forth comprehensive and exclusive rules concerning
the subject of extradition.14 In my opinion, "the manifest scope
and object of the treaty itself,"
Rauscher, 119 U. S., at
422, plainly imply a mutual undertaking to respect the territorial
integrity of the other contracting party. That opinion is confirmed
by a consideration of the "legal context" in which the Treaty was
negotiated.15
Cannon v.
University of Chicago,
441 U. S. 677,
699 (1979).
II
In
Rauscher, the Court construed an extradition treaty
that was far less comprehensive than the 1978 Treaty with Mexico.
The 1842 treaty with Great Britain determined the boundary between
the United States and Canada, provided for the suppression of the
African slave trade, and also con-
13 This Court has previously described a treaty as generally "in
its nature a contract between two nations,"
Foster v.
Neilson, 2 Pet. 253, 314 (1829); see
Rauscher, 119 U.
S., at 418; it is also in this country the law of the land. 2 Pet.,
at 314; 119 U. S., at 418-419.
14 Mexico's understanding is that "[t]he extradition treaty
governs comprehensively the delivery of all persons for trial in
the requesting state 'for an offense committed outside the
territory of the requesting Party.''' Brieffor United Mexican
States as
Amicus Curiae, O. T. 1991, No. 91-670, p. 6. And
Canada, with whom the United States also shares a large border and
with whom the United States also has an extradition treaty,
understands the treaty to be "the exclusive means for a requesting
government to obtain ... a removal" of a person from its territory,
unless a nation otherwise gives its consent. Brief for Government
of Canada as
Amicus Curiae 4.
15 The United States has offered no evidence from the
negotiating record, ratification process, or later communications
with Mexico to support the suggestion that a different
understanding with Mexico was reached. See Bassiouni, International
Extradition: United States Law and Practice, ch. 2, §4.3, at 82
("Negotiations, preparatory works, and diplomatic correspondence
are an integral part of thEe] surrounding circumstances, and [are]
often relied on by courts in ascertaining the intentions of the
parties") (footnote omitted).
676
tained one paragraph authorizing the extradition of fugitives
"in certain cases." 8 Stat. 576. In Article X, each nation agreed
to "deliver up to justice all persons" properly charged with anyone
of seven specific crimes, including murder. 119 U. S., at 421.16
After Rauscher had been extradited for murder, he was charged with
the lesser offense of inflicting cruel and unusual punishment on a
member of the crew of a vessel on the high seas. Although the
treaty did not purport to place any limit on the jurisdiction of
the demanding state after acquiring custody of the fugitive, this
Court held that he could not be tried for any offense other than
murder.17 Thus, the treaty constituted the exclusive means by
which
16 Article X of the Treaty provided:
"It is agreed that the United States and Her Britannic Majesty
shall, upon mutual requisitions by them, or their ministers,
officers, or authorities, respectively made, deliver up to justice
all persons who, being charged with the crime of murder, or assault
with intent to commit murder, or piracy, or arson, or robbery, or
forgery, or the utterance of forged paper, committed within the
jurisdiction of either, shall seek an asylum, or shall be found,
within the territories of the other: provided that this shall only
be done upon such evidence of criminality as, according to the laws
of the place where the fugitive or person so charged shall be
found, would justify his apprehension and commitment for trial, if
the crime or offence had there been committed: and the respective
judges and other magistrates of the two Governments shall have
power, jurisdiction, and authority, upon complaint made under oath,
to issue a warrant for the apprehension of the fugitive or person
so charged, that he may be brought before such judges or other
magistrates, respectively, to the end that the evidence of
criminality may be heard and considered; and if, on such hearing,
the evidence be deemed sufficient to sustain the charge, it shall
be the duty of the examining judge or magistrate to certify the
same to the proper Executive authority, that a warrant may issue
for the surrender of such fugitive. The expense of such
apprehension and delivery shall be borne and defrayed by the party
who makes the requisition, and receives the fugitive." 8 Stat.
576.
17The doctrine defined by the Court in
Rauscher-that a
person can be tried only for the crime for which he had been
extradited-has come to be known as the "doctrine of specialty."
677
the United States could obtain jurisdiction over a defendant
within the territorial jurisdiction of Great Britain.
The Court noted that the treaty included several specific
provisions, such as the crimes for which one could be extradited,
the process by which the extradition was to be carried out, and
even the evidence that was to be produced, and concluded that "the
fair purpose of the treaty is, that the person shall be delivered
up to be tried for that offence and for no other."
Id., at
423. The Court reasoned that it did not make sense for the treaty
to provide such specifics only to have the person "pas[s] into the
hands of the country which charges him with the offence, free from
all the positive requirements and just implications of the treaty
under which the transfer of his person takes place."
Id., at
421. To interpret the treaty in a contrary way would mean that a
country could request extradition of a person for one of the seven
crimes covered by the treaty, and then try the person for another
crime, such as a political crime, which was clearly not covered by
the treaty; this result, the Court concluded, was clearly contrary
to the intent of the parties and the purpose of the treaty.
Rejecting an argument that the sole purpose of Article X was to
provide a procedure for the transfer of an individual from the
jurisdiction of one sovereign to another, the Court stated:
"No such view of solemn public treaties between the great
nations of the earth can be sustained by a tribunal called upon to
give judicial construction to them.
"The opposite view has been attempted to be maintained in this
country upon the ground that there is no express limitation in the
treaty of the right of the country in which the offence was
committed to try the person for the crime alone for which he was
extradited, and that once being within the jurisdiction of that
country, no matter by what contrivance or fraud or by what pretence
of establishing a charge provided for by the extra-
678
dition treaty he may have been brought within the jurisdiction,
he is, when here, liable to be tried for any offence against the
laws as though arrested here originally. This proposition of the
absence of express restriction in the treaty of the right to try
him for other offences than that for which he was extradited, is
met by the manifest scope and object of the treaty itself."
Id., at 422.
Thus, the Extradition Treaty, as understood in the context of
cases that have addressed similar issues, suffices to protect the
defendant from prosecution despite the absence of any express
language in the Treaty itself purporting to limit this Nation's
power to prosecute a defendant over whom it had lawfully acquired
jurisdiction.18
Although the Court's conclusion in
Rauscher was supported
by a number of judicial precedents, the holdings in these cases
were not nearly as uniform 19 as the consensus of international
opinion that condemns one nation's violation of the territorial
integrity of a friendly neighbor.20 It is
18 In its opinion, the Court suggests that the result in
Rauscher was dictated by the fact that two federal statutes
had imposed the doctrine of specialty upon extradition treaties.
Ante, at 660. The two cited statutes, however, do not
contain any language purporting to limit the jurisdiction of the
court; rather, they merely provide for protection of the accused
pending trial.
19 In fact, both parties noted in their respective briefs
several authorities that had held that a person could be tried for
an offense other than the one for which he had been extradited. See
Brief for United States in
United States v.
Rauscher,
O. T. 1885, No. 1249, pp. 6-10 (citing
United States v.
Caldwell, 8 Blatchford 131 (SDNY 1871);
United States
v.
Lawrence, 13 Blatchford 295 (SDNY 1876);
Adriance
v.
Lagrave, 59 N. Y. 110 (1874)); Brief for Respondent in
United States v.
Rauscher, O. T. 1885, No. 1249, pp.
8-16.
20 This principle is embodied in Article 17 of the Charter of
the Organization of American States, Apr. 30, 1948,2 U. S. T. 2394,
T. 1. A. S. No. 2361, as amended by the Protocol of Buenos Aires,
Feb. 27, 1967,21 U. S. T. 607, T. 1. A. S. No. 6847, as well as
numerous provisions of the United Nations Charter, June 26, 1945,
59 Stat. 1031, T. S. No. 993 (to which both the
679
shocking that a party to an extradition treaty might believe
that it has secretly reserved the right to make seizures of
citizens in the other party's territory.21 Justice Story found it
shocking enough that the United States would attempt to justify an
American seizure of a foreign vessel in a Spanish port:
"But, even supposing, for a moment, that our laws had required
an entry of The Apollon, in her transit, does it follow that the
power to arrest her was meant to be given, after she had passed
into the exclusive territory of a foreign nation? We think not.
It would be monstrous to suppose that our revenue officers
were authorized to enter into foreign ports and territories, for
the purpose of seizing vessels which had offended against our laws.
It cannot be presumed that congress would voluntarily justify such
a clear violation of the laws of nations." The Apollon, 9
Wheat. 362, 370-371 (1824) (emphasis added).22
United States and Mexico are signatories). See generally Mann,
Reflections on the Prosecution of Persons Abducted in Breach of
International Law, in International Law at a Time of Perplexity 407
(Y. Dinstein & M. Tabory eds. 1989).
21 When Abraham Sofaer, Legal Adviser of the State Department,
was questioned at a congressional hearing, he resisted the notion
that such seizures were acceptable: "'Can you imagine us going into
Paris and seizing some person we regard as a terrorist ... ? [H]ow
would we feel if some foreign nation-let us take the United
Kingdom-came over here and seized some terrorist suspect in New
York City, or Boston, or Philadelphia, ... because we refused
through the normal channels of international, legal communications,
to extradite that individual?'" Bill To Authorize Prosecution of
Terrorists and Others Who Attack U. S. Government Employees and
Citizens Abroad: Hearing before the Subcommittee on Security and
Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st
Sess., 63 (1985).
22Justice Story's opinion continued:
"The arrest of the offending vessel must, therefore, be
restrained to places where our jurisdiction is complete, to our own
waters, or to the ocean, the common highway of all nations. It is
said, that there is a revenue
680
The law of nations, as understood by Justice Story in 1824, has
not changed. Thus, a leading treatise explains:
"A State must not perform acts of sovereignty in the territory
of another State.
"It is ... a breach of International Law for a State to send its
agents to the territory of another State to apprehend persons
accused of having committed a crime. Apart from other satisfaction,
the first duty of the offending State is to hand over the person in
question to the State in whose territory he was apprehended." 1
Oppenheim's International Law 295, and n. 1 (H. Lauterpacht 8th ed.
1955).23
Commenting on the precise issue raised by this case, the chief
reporter for the American Law Institute's Restatement of Foreign
Relations used language reminiscent of Justice Story's
characterization of an official seizure in a foreign jurisdiction
as "monstrous":
jurisdiction, which is distinct from the ordinary maritime
jurisdiction over waters within the range of a common shot from our
shores. And the provisions in the Collection Act of 1799, which
authorize a visitation of vessels within four leagues of our
coasts, are referred to in proof of the assertion. But where is
that right of visitation to be exercised? In a foreign territory,
in the exclusive jurisdiction of another sovereign? Certainly not;
for the very terms of the act confine it to the ocean, where all
nations have a common right, and exercise a common sovereignty. And
over what vessels is this right of visitation to be exercised? By
the very words of the act, over our own vessels, and over foreign
vessels bound to our ports, and over no others. To have gone beyond
this, would have been an usurpation of exclusive sovereignty on the
ocean, and an exercise of an universal right of search, a right
which has never yet been acknowledged by other nations, and would
be resisted by none with more pertinacity than by the American."
The Apollon, 9 Wheat., at 371-372.
23 See Restatement § 432, Comment
c ("If the unauthorized
action includes abduction of a person, the state from which the
person was abducted may demand return of the person, and
international law requires that he be returned").
681
"When done without consent of the foreign government, abducting
a person from a foreign country is a gross violation of
international law and gross disrespect for a norm high in the
opinion of mankind. I t is a blatant violation of the territorial
integrity of another state; it eviscerates the extradition system
(established by a comprehensive network of treaties involving
virtually all states)." 24
In the
Rauscher case, the legal background that supported
the decision to imply a covenant not to prosecute for an offense
different from that for which extradition had been granted was far
less clear than the rule against invading the territorial integrity
of a treaty partner that supports Mexico's position in this case.25
If
Rauscher was correctly decided-and I am convinced that it
was-its rationale clearly dictates a comparable result in this
case.26
24 Henkin, A Decent Respect to the Opinions of Mankind, 25 John
Marshall L. Rev. 215, 231 (1992) (footnote omitted).
25 Thus, the Restatement states in part:
"(2) A state's law enforcement officers may exercise their
functions in the territory of another state only with the consent
of the other state, given by duly authorized officials of that
state.
"c. Consequences of violation of territorial limits of law
enforcement.
If a state's law enforcement officials exercise their functions
in the territory of another state without the latter's consent,
that state is entitled to protest and, in appropriate cases, to
receive reparation from the offending state. If the unauthorized
action includes abduction of a person, the state from which the
person was abducted may demand return of the person, and
international law requires that he be returned. If the state from
which the person was abducted does not demand his return, under the
prevailing view the abducting state may proceed to prosecute him
under its laws." § 432, and Comment
c.
26Just as Rauscher had standing to raise the treaty violation
issue, respondent may raise a comparable issue in this case.
Certainly, if an individual who is not a party to an agreement
between the United States and another country is permitted to
assert the rights of that country in our courts, as is true in the
specialty cases, then the same rule must apply to
682
III
A critical flaw pervades the Court's entire OpInIOn. It fails to
differentiate between the conduct of private citizens, which does
not violate any treaty obligation, and conduct expressly authorized
by the Executive Branch of the Government, which unquestionably
constitutes a flagrant violation of internationallaw,27 and in my
opinion, also constitutes a breach of our treaty obligations. Thus,
at the outset of its opinion, the Court states the issue as
"whether a criminal defendant, abducted to the United States from a
nation with which it has an extradition treaty, thereby acquires a
defense to the jurisdiction of this country's courts."
Ante,
at 657. That, of course, is the question decided in
Ker v.
Illinois, 119
U. S. 436 (1886); it is not, however, the question presented
for decision today.
The importance of the distinction between a court's exercise of
jurisdiction over either a person or property that has been
wrongfully seized by a private citizen, or even by a state law
enforcement agent, on the one hand, and the attempted exercise of
jurisdiction predicated on a seizure by federal officers acting
beyond the authority conferred by treaty, on the other hand, is
explained by Justice Brandeis in his opinion for the Court in
Cook v.
United States, 288 U. S. 102 (1933).
That case involved a construction of a Prohibition Era treaty with
Great Britain that authorized American agents to board certain
British vessels to ascertain whether they were engaged in importing
alcoholic beverages. A
the individual who has been a victim of this country's breach of
an extradition treaty and who wishes to assert the rights of that
country in our courts after that country has already registered its
protest.
27 "In the international legal order, treaties are concluded by
states against a background of customary international law. Norms
of customary international law specify the circumstances in which
the failure of one party to fulfill its treaty obligations will
,permit the other to rescind the treaty, retaliate, or take other
steps." Vazquez, Treaty-Based Rights and Remedies of Individuals,
92 Colum. L. Rev. 1082, 1157 (1992).
683
British vessel was boarded 111/2 miles off the coast of
Massachusetts, found to be carrying unmanifested alcoholic
beverages, and taken into port. The Collector of Customs assessed a
penalty which he attempted to collect by means of libels against
both the cargo and the seized vessel.
The Court held that the seizure was not authorized by the treaty
because it occurred more than 10 miles off shore.28 The Government
argued that the illegality of the seizure was immaterial because,
as in
Ker, the court's jurisdiction was supported by
possession even if the seizure was wrongful. Justice Brandeis
acknowledged that the argument would succeed if the seizure had
been made by a private party without authority to act for the
Government, but that a different rule prevails when the Government
itself lacks the power to seize. Relying on
Rauscher, and
distinguishing
Ker, he explained:
"Fourth. As the Mazel Tov was seized without warrant of
law, the libels were properly dismissed. The Government contends
that the alleged illegality of the seizure is immaterial. It argues
that the facts proved show a violation of our law for which the
penalty of forfeiture is prescribed; that the United States may, by
filing a libel for forfeiture, ratify what otherwise would have
been an illegal seizure; that the seized vessel having been brought
into the Port of Providence, the federal court for Rhode Island
acquired jurisdiction; and that, moreover, the claimant by
answering to the merits waived any right to object to enforcement
of the penalties. The argument rests upon misconceptions.
"It is true that where the United States, having possession of
property, files a libel to enforce a forfeiture resulting from a
violation of its laws, the fact that the possession was acquired by
a wrongful act is immaterial.
28 The treaty provided that the boarding rights could not be
exercised at a greater distance from the coast than the vessel
could traverse in one hour, and the seized vessel's speed did not
exceed 10 miles an hour.
Cook v.
United States, 288
U. S., at 107, 110.
684
Dodge v. United States, 272 U. S. 530, 532
[(1926)]. Compare Ker v. Illinois, 119 U. S. 436, 444. The
doctrine rests primarily upon the common-law rules that any person
may, at his peril, seize property which has become forfeited to, or
forfeitable by, the Government; and that proceedings by the
Government to enforce a forfeiture ratify a seizure made by one
without authority, since ratification is equivalent to antecedent
delegation of authority to seize. Gelston v. Hoyt, 3
Wheat. 246, 310 [(1818)]; Taylor v. United States, 3
How. 197, 205-206 [(1845)]. The doctrine is not applicable here.
The objection to the seizure is not that it was wrongful merely
because made by one upon whom the Government had not conferred
authority to seize at the place where the seizure was made. The
objection is that the Government itself lacked power to seize,
since by the Treaty it had imposed a territorial limitation upon
its own authority. The Treaty fixes the conditions under which a
'vessel may be seized and taken into a port of the United States,
its territories or possessions for adjudication in accordance with'
the applicable laws. Thereby, Great Britain agreed that
adjudication may follow a rightful seizure. Our Government, lacking
power to seize, lacked power, because of the Treaty, to subject the
vessel to our laws. To hold that adjudication may follow a wrongful
seizure would go far to nullify the purpose and effect of the
Treaty. Compare United States v. Rauscher, 119 U. S. 407."
Cook v. United States, 288 U. S., at 120-122.
The same reasoning was employed by Justice Miller to explain why
the holding in
Rauscher did not apply to the
Ker
case. The arresting officer in
Ker did not pretend to be
acting in any official capacity when he kidnaped Ker. As Justice
Miller noted, "the facts show that it was a clear case of
kidnapping within the dominions of Peru, without any pretence of
authority under the treaty
or from the government
685
of the United States." Ker v.
Illinois, 119 U. S.,
at 443 (emphasis added).29 The exact opposite is true in this case,
as it was in
Cook.30
The Court's failure to differentiate between private abductions
and official invasions of another sovereign's territory also
accounts for its misplaced reliance on the 1935 proposal made by
the Advisory Committee on Research in International Law. See
ante, at 665-666, and n. 13. As the text of that proposal
plainly states, it would have rejected the rule of the
Ker
case.31 The failure to adopt that recommendation does not speak to
the issue the Court decides today. The
29 As the Illinois Supreme Court described the action:
"The arrest and detention of [Ker] was not by any authority of
the general government, and no obligation is implied on the part of
the Federal or any State government .... The invasion of the
sovereignty of Peru, if any wrong was done, was by individuals,
perhaps some of them owing no allegiance to the United States, and
not by the Federal government."
Ker v.
Illinois, 110
Ill. 627, 643 (1884).
30 The Martinez incident discussed by the Court, see
ante, at 665, n. 11, also involved an abduction by a private
party; the reference to the
Ker precedent was therefore
appropriate in that case. On the other hand, the letter written by
Secretary of State Blaine to the Governor of Texas in 1881
unequivocally disapproved of abductions by either party to an
extradition treaty. In 1984, Secretary of State Schultz expressed
the same opinion about an authorized kidnaping of a Canadian
national. He remarked that, in view of the extradition treaty
between the United States and Canada, it was understandable that
Canada was "outraged" by the kidnaping and considered it to be "a
violation of the treaty and of internationallaw, as well as an
affront to its sovereignty." See Leich, Contemporary Practice of
the United States Relating to International Law, 78 Am.
31 Article 16 of the draft provides:
"In exercising jurisdiction under this Convention, no State
shall prosecute or punish any person who has been brought within
its territory or a place subject to its authority by recourse to
measures in violation of international law or international
convention without first obtaining the consent of the State or
States whose rights have been violated by such measures." Harvard
Research in International Law, Draft Convention on Jurisdiction
with Respect to Crime, 29 Am. J. Int'l L. 435, 623 (Supp.
1935).
686
Court's admittedly "shocking" disdain for customary and
conventional international law principles, see
ante, at 669,
is thus entirely unsupported by case law and commentary.
IV
As the Court observes at the outset of its opinion, there is
reason to believe that respondent participated in an especially
brutal murder of an American law enforcement agent. That fact, if
true, may explain the Executive's intense interest in punishing
respondent in our courts.32 Such an explanation, however, provides
no justification for disregarding the Rule of Law that this Court
has a duty to uphold.33 That the Executive may wish to reinterpret
34 the Treaty to
32 See,
e. g., Storm Arises Over Camarena; U. S.
Wants Harder Line Adopted, Latin Am. Weekly Rep., Mar. 8, 1985, p.
10; U. S. Presses Mexico To Find Agent, Chicago Tribune, Feb. 20,
1985, p. 10.
33 As Justice Brandeis so wisely urged:
"In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto
himself; it invites anarchy. To declare that in the administration
of the criminal law the end justifies the means-to declare that the
Government may commit crimes in order to secure the conviction of a
private criminal-would bring terrible retribution. Against that
pernicious doctrine this Court should resolutely set its face."
Olmstead v.
United States, 277 U. S. 438, 485 (1928)
(dissenting opinion).
34 Certainly, the Executive's view has changed over time. At one
point, the Office of Legal Counsel advised the administration that
such seizures were contrary to international law because they
compromised the territorial integrity of the other nation and were
only to be undertaken with the consent of that nation. 4B Op. Off.
Legal Counsel 549, 556 (1980). More recently, that opinion was
revised, and the new opinion concluded that the President did have
the authority to override customary international law. Hearing
before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 101st Cong., 1st Sess., 4-5
(1989) (statement of William P. Barr, Assistant Attorney General,
Office of Legal Counsel, U. S. Department of Justice).
687
allow for an action that the Treaty in no way authorizes should
not influence this Court's interpretation.35 Indeed, the desire for
revenge exerts "a kind of hydraulic pressure ... before which even
well settled principles of law will bend,"
Northern Securities
Co. v.
United States, 193 U. S. 197, 401 (1904)
(Holmes, J., dissenting), but it is precisely at such moments that
we should remember and be guided by our duty "to render judgment
evenly and dispassionately according to law, as each is given
understanding to ascertain and apply it."
United States v.
Mine Workers, 330 U. S. 258, 342 (1947)
(Rutledge, J., dissenting). The way that we perform that duty in a
case of this kind sets an example that other tribunals in other
countries are sure to emulate.
The significance of this Court's precedents is illustrated by a
recent decision of the Court of Appeal of the Republic of South
Africa. Based largely on its understanding of the import of this
Court's cases-including our decision in
Kerthat court held
that the prosecution of a defendant kidnaped by agents of South
Africa in another country must be dismissed. S v.
Ebrahim,
S. Afr. L. Rep. (Apr.-June 1991).36 The Court of Appeal of South
Africa-indeed, I suspect most courts throughout the civilized
world-will be deeply disturbed by the "monstrous" decision the
Court announces today. For every nation that has an interest in
preserving the Rule of Law is affected, directly or indirectly, by
a deci-
35 Cf.
Perkins v.
Elg, 307 U. S. 325 (1939)
(construing treaty in accordance with historical construction and
refusing to defer to change in Executive policy);
Johnson v.
Browne, 205 U.
S. 309 (1907) (rejecting Executive's interpretation).
36 The South African court agreed with appellant that an
"abduction represents a violation of the applicable rules of
international law, that these rules are part of [South Mrican] law,
and that this violation of the law deprives the Court ... of its
competence to hear [appellant's] case .... " S. Afr. L. Rep., at
8-9.
688
sion of this character.37 As Thomas Paine warned, an "avidity to
punish is always dangerous to liberty" because it leads a nation
"to stretch, to misinterpret, and to misapply even the best of
laws."3S To counter that tendency, he reminds us:
"He that would make his own liberty secure must guard even his
enemy from oppression; for if he violates this duty he establishes
a precedent that will reach to himself." 39
I respectfully dissent.
37 As Judge Mansfield presciently observed in a case not unlike
the one before us today: "Society is the ultimate loser when, in
order to convict the guilty, it uses methods that lead to decreased
respect for the law."
United States v.
Toscanino,
500 F.2d
267, 274
(CA2 1974).
382 The Complete Writings of Thomas Paine 588 (P. Foner ed.
1945).
39 Ibid.
Comments
Be the first to comment
Leave a Comment