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Still More on Kidnaping

Published online by Cambridge University Press:  27 February 2017

Andreas F. Lowenfel
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Editorial Comments
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American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 655 - 661
Copyright
Copyright © American Society of International Law 1991

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References

1 U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AJIL 880 (October 1989); U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, 84 ASIL 444 (April 1990); Kidnaping by Government Order: A Follow-up, 84 AJIL 712 (July 1990).

2 For discussion of the origins and development of that doctrine, see 84 AJIL at 459–77.

3 United States v. Caro-Quintero, 745 F.Supp. 599 (CD. Cal. 1990).

4 Id. at 612. The court added that the fact that two of the abductors appear to have been active Mexican police officers “is of no consequence.” These persons, the judge held, were clearly acting outside the scope of their authority, and he pointed out that they had been arrested by the Mexican Government on kidnaping charges.

5 Id. at 604.

6 Id. at 614. The reference is to Restatement (Third) of the Foreign Relations Law of the United States §901, and Reporters’ Note 3 thereto (1987) [hereinafter Restatement].

It is worth adding that in deciding as he did on the claim of violation of international law, Judge Rafeedie was not obliged to pass on the request of the defendant that he dismiss the indictment under the court’s supervisory power to preserve judicial integrity and deter illegal conduct. However, he was clearly upset that this was the third instance of abduction in the same proceeding, and he closed his opinion with a quotation from Judge Oakes’s concurring opinion in United States v. Lira, 515 F.2d 68, 73 (2d Cir. 1975), warning of the time when the courts might wish to bar jurisdiction in abductions cases “in the interest of the greater good of preserving respect for law.” A longer excerpt from Judge Oakes’s opinion appears in my earlier article, 84 AJIL at 472.

7 See 84 AJIL at 448–49, 452–54.

8 United States v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990) [hereinafter Verdugo I], A brief summary and critique are contained as a Coda to my earlier article, 84 AJIL at 491–93.

9 See 84 AJIL at 488.

10 See United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215 (9th Cir. 1988) [Verdugo I].

11 United States v. Verdugo-Urquidez, 939 F.2d 1341, 1344 (9th Cir. 1991), reprinted in 30 ILM 1197 (1991) [hereinafter Verdugo II].

Since the events in Verdugo, and the challenge to the court’s jurisdiction, occurred prior to the events in Alvarez Machain, the court of appeals said that it excluded the decision of Judge Rafeedie in that case in referring to relevant prior decisions. Id. at 1343 n.1. In fact, much of the analysis of the court of appeals follows Judge Rafeedie’s opinion.

12 Ker v. Illinois, 119 U.S. 436 (1886).

15 See my account of the facts of Ker, 84 AJIL at 460–61. One could well argue that Mr. Julian, the man sent to Peru to bring back Mr. Ker, was an agent of the United States, since he carried an extradition warrant issued by President Arthur, and he brought Mr. Ker back to the United States aboard a United States naval vessel. But it is probably true that in the age before instant communications, Mr. Julian, an employee of the Pinkerton Agency, had decided on kidnaping Mr. Ker on his own, without authorization from the U.S. Government.

14 Verdugo II, 939 F.2d at 1346.

15 The court acknowledged that there was no functioning Peruvian Government at the time, citing Kester, Some Myths of United States Extradition Law, 76 Geo. L.J. 1441, 1451 (1988). See also 84 AJIL at 462 n.85 and the article by Fairman there cited.

16 Frisbie v. Collins, 342 U.S. 519 (1952). ” Verdugo II, 939 F.2d at 1347.

18 119 U.S. 407 (1886).

19 Verdugo II, 939 F.2d at 1348.

20 See 84 AJIL at 463–64.

21 Verdugo II, 939 F.2d at 1348.

22 See Restatement, supra note 6, §477.

23 Verdugo II, 939 F.2d at 1349–50.

24 Treaty of Extradition, May 4, 1978, United States-Mexico, 31 UST 5059, TIAS No. 9656.

25 Verdugo II, 939 F.2d at 1350–51. In the Alvarez Machain case, Judge Rafeedie characterized the same argument as “absurd.” 745 F.Supp. at 610.

26 Verdugo II, 939 F.2d at 1352. ” Id. at 1353 & n.12.

28 As a former member of the State Department’s Office of the Legal Adviser, an office to which I still have considerable loyalty, it pains me to report that the Government in its brief urged the court to defer on treaty interpretation to the views of the executive branch, and then introduced a letter written by the current Legal Adviser, apparently in response to the decision in Alvarez Machain, supporting the Government’s position as quoted above. The court rejected the submission, first, be cause deference to the executive branch was appropriate only in case of doubt and here there were no doubts to resolve; and second, because the current Legal Adviser’s position conflicted with those of his predecessors, citing in particular the statement of Secretary Shultz in response to the kidnaping from Canada of a Canadian national sought on a fraud charge in Florida. See 78 AJIL 207 (1984).

29 Recall the Argoud case (1964 Bull. Crim. 420 (Cass. crim. June 4, 1964)), involving an abduction from Germany to France, in which the holding seemed to be (1) if the foreign state does not protest, the court does not recognize the claim of violation of international law; (2) if the foreign state does protest, then the issue is one to be settled between the states, but does not deprive the court of jurisdiction over the prisoner. See 84 AJIL at 475–76.

30 See Verdugo II, 939 F.2d at 1355 & n. 13. The difference among the circuits in specialty cases turns on whether a formal protest is required. Since there was a formal protest in Verdugo’s case, it is likely, as the court concluded, that the prisoner would be found to have standing in every circuit.

31 Id. at 1355.

32 Id. at 1356.1 omit here reporting on the court’s swift dismissal of other arguments put forward on behalf of the U.S. Government—violation of separation of powers, expansion of the role of courts in international relations, nonjusticiable political question, intervention in matters properly within executive discretion, and even that because the right relied on depends on an implicit term, the Extradition Treaty is not self-executing.

33 Id. at 1359. Recall in this connection the conflicting assertions in Alvarez Machain, as reported in my July 1990 Follow-up, 84 AJIL at 714–16.

34 As happened in the Eichmann case following a diplomatic settlement between the United States and Argentina. Both the majority and the dissent make reference to the Eichmann case on the issue of consent and revocation of consent.

35 See the excerpts from the United States-Mexico Extradition Treaty of 1978 (supra note 24) quoted in 84 AJIL at 713 n.5.

Judge Browning concurred in part and dissented in part. Concurring on the issue of treaty violation, Judge Browning would have focused only on Article 9, rather than holding that all extradition treaties are violated by abduction from the treaty partner’s territory without that state’s consent.

Judge Browning’s partial dissent focused on the issue of Mexico’s protest, which he thought was not unequivocal, as compared with its protests with regard to Alvarez Machain. Judge Browning pointed out that the protest in the case of Verdugo had been made in the context of his trial on the narcotics charges, not in the context of the prosecution for murder. Judge Browning would have sent the case back to the district court for an evidentiary hearing on the scope and intent of Mexico’s protest concerning the abduction.

36 Perhaps I should add that I have no way of knowing whether my articles in this Journal had any impact on the court of appeals. I believe they were cited in the briefs, but they are not cited in the opinion of the court or in the concurrence.

37 See Proceedings of Conference on Strengthening the Rule of Law in the War against Drugs and Narco-Terrorism (Washington, D.C., Oct. 11, 1990), Part III: “Seizure of Narco-Terrorists Abroad,” reproduced in 15 Nova L. Rev. 838 (1991).

38 See 84 AJIL at 484–88.

39 See note 35 supra.

40 84 AJIL at 489 n.226.