Published online by Cambridge University Press: 27 February 2017
On June 15, 1992, the United States Supreme Court confronted what the Permanent Court of International Justice termed in The Lotus to be “the first and foremost restriction imposed by international law upon a State: … that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” Contrary to popular criticism, the Court did not challenge that proposition. But it did apply, without adequate analysis, an antiquated doctrine that permits a defendant to be tried regardless of the unlawfulness of the seizure. In so doing, it ignored altogether the issue of presidential constitutional power to conduct such seizures. And it placed the issue squarely before Congress.
1 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18 (Sept. 7).
2 Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Op. Off. Legal Counsel 543 (1980).
3 Restatement (Third) of the Foreign Relations Law of the United States §432(2) (1987) [hereinafter Restatement].
4 FBI Authority to Seize Suspects Abroad: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the fudiciary, 101st Cong., 1st Sess. 31 (1989) (statement of Abraham D. Sofaer, Legal Adviser, U.S. Department of State) [hereinafter 1989 Hearings].
6 “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … .” UN Charter Art. 2, para. 4.
7 “The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever … .” OAS Charter Art. 17.
8 In response to Argentina's objection to the abduction, the Security Council
adopted a resolution:
Considering that the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations … [and n]oting that the repetition of acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded creating an atmosphere of insecurity and distrust incompatible with the preservation of peace … [the Security Council requests] the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law.
Commentators have construed this action as being a definitive construction of the United Nations Charter as proscribing forcible abductions in the absence of acquiescence by the asylum state.
Quoted in 4B Op. Off. Legal Counsel, supra note 2, at 548.
9 United States v. Alvarez-Machain, 60 U.S.L.W. 4523, 4526 (U.S. June 15, 1992) (No. 91-712).
10 Brief for the Government of Canada as Amicus Curiae in Support of Respondent at 4, United States v. Alvarez-Machain, 60 U.S.L.W. 4523 (U.S.June 15, 1992) (No. 91-712).
11 Brief for the United Mexican States as Amicus Curiae in Support of Affirmance at 10, id.
12 See, e.g., Kidnap? Sure, Says the Court, N.Y. Times, June 18, 1992, at A26 (“The United States, says the Court, may kidnap foreigners in their own countries and, over their countries' protest, drag them here for a criminal trial.”).
13 60 U.S.L.W. at 4527.
14 According to Senator Specter:
[I]f the terrorist is hiding in a country … where the government is unwilling, we must be willing to apprehend these criminals ourselves and bring them back for trial. We have the ability to do that right now, under existing law. Under current constitutional doctrine, both U.S. citizens and foreign nationals can be seized and brought to trial in the United States without violating due process of law.
132 Cong. Rec. S1384 (daily ed. Feb. 19, 1986) (statement of Sen. Specter).
15 Bill to Authorize Prosecution of Terrorists and Others Who Attack U.S. Government Employees and Citizens Abroad: Hearing Before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 63 (1985).
16 1989 Hearings, supra note 4, at 3–4. See also Leigh, Is the President above Customary Interna tional Law?, infra p. 757.
17 4B Op. Off. Legal Counsel, supra note 2, at 543–44.
18 132 Cong. Rec. S1383, supra note 14 (statement of Sen. Specter).
19 Article 51 provides:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of self-defence shall be immediately reported to the Security Council ….
20 Restatement, supra note 3, §402(3).
21 See Oscar Schachter, In Defense of International Rules on the Use of Force, 53 U. Cm. L. Rev. 113 (1986); Report of the Committee on Use of Force in Relations among States, 1985–86 Am. Branch Int'l L. Ass'n, Proc. & Comm. Reps. 188, 201–10.
22 See, e.g., In re Jolis, 7 Ann. Dig. 191 (Trib. correctionnel d'Avesnes 1933) (arrest of Belgian by French police in Belgium was “a nullity,” because the Belgian Government lodged an official protest with the French Government); Ex parte Mackeson, 75 Crim. App. 24 (1981) (prohibited defendant's prosecution on ground that provisions of Fugitive Offenders Act should have been followed to extra dite him from Zimbabwe-Rhodesia); S. v. Ebrahim, S. Afr. L. Rep., Apr.–June 1991, at 8–9 (the South African Court of Appeal ruled that an “abduction represents a violation of the applicable rules of international law, that these rules are part of [South African] law, and that this violation of the law deprives the Court … of its competence to hear [appellant's] case.”).
23 See, e.g., Ex parte Scott, 109 Eng. Rep. 166 (1829) (upholding prosecution following arrest of defendant by an English police officer in Brussels; the court “cannot inquire into” the “circumstances under which [the defendant] was brought” before it); R. v. Lopez & Sattler, 1 Dearsley & Bell's Crown Cases 525, 546–47 (1858) (upholding prosecution after an arrest abroad; jurisdiction over defendant was not affected “whether the capture … and the subsequent detention were lawful or unlawful”); Afouneh v. Attorney General, 4 Ann. Dig. 327, 327–28 (Palestine Sup. Ct. 1942) (“Where a fugitive is brought back by kidnapping … he cannot … set up in answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the court.”); In re Karoly R., 4 Ann. Dig. 345, 345–46 (Hungarian Minister of Justice 1928) (“There is no rule of public international law according to which courts of a State have no right to conduct criminal proceedings against an accused who returned from abroad by any means other than extradition.”).
24 60 U.S.L.W. at 4526 & n.13 (citing Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL 623 (Supp. 1935)).
25 Frisbie v. Collins, 342 U.S. 519 (1952), cited in Alvarez-Machain, 60 U.S.L.W. at 4525.
26 60 U.S.L.W. at 4527.
27 The Paquete Habana, 175 U.S. 677, 700 (1900).
28 See, e.g., Jonathan I. Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, 80 AJIL 913 (1986); Michael J. Glennon, Can the President Do No Wrong?, id. at 923; Louis Henkin, The President and International Law, id. at 930; Frederic L. Kirgis, Jr., Federal Statutes, Executive Orders and “Self-Executing Custom,” 81 id. at 371 (1987); Anthony D'Amato, The President and International Law: A Missing Dimension, id. at 375; Jordan J. Paust, The President Is Bound by International Law, id. at 377; Sweeney, Letter to the Editor, id. at 637. See also Jordan J. Paust, Rediscovering the Relationship between Congressional Power and Interna tional Law: Exceptions to the Last-in-Time Rule and the Primacy of Custom, 28 Va. J. Int'l L. 393 (1988); Arthur M. Weisburd, The Executive Branch and International Law, 41 Vand. L. Rev. 1205 (1988); Stefan A. Riesenfeld, The Powers of Congress and the President in International Relations: Revisited, 75 Cal. L. Rev. 405 (1987).
29 See Michael J. Glennon, Constitutional Diplomacy, ch. 7 (1990).
30 See, e.g., Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804); Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); The Nereide, 13 U.S. (9 Cranch) 388 (1815); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847).
31 1989 Hearings, supra note 4, at 6.
32 Restatement, supra note 3, §113.
33 The Charming Betsy, 6 U.S. (2 Cranch) 64, 116 (1804).
34 See Glennon, supra note 29, at 247.
35 15 The Papers of Alexander Hamilton 38 (Harold Syrett ed., 1961–79).
36 2 Writings of James Madison 107 (Gaillard Hunt ed., 1906).
37 1989 Hearings, supra note 4, at 6–7.
38 342 U.S. at 523.
39 See note 24 supra.
40 1989 Hearings, supra note 4, at 6.
41 United States v. Robel, 389 U.S. 258, 264 (1967).
42 Mapp v. Ohio, 367 U.S. 643 (1961).
43 Glennon, supra note 29, at 96.
44 Resolution adopted Feb. 13, 1978, by the House of Delegates of the American Bar Association, 103 A.B.A. Rep. 213 (1978).
45 Crisis in the Persian Gulf: Hearings and Markup Before the House Comm. on Foreign Affairs, 101st Cong., 2d Sess. 26 (1990) (statement of James A. Baker III, Secretary of State).
46 Argument made by Solicitor General Kenneth Starr, quoted in Trial for Abducted Mexican Weighed, Atlanta J. & const., Apr. 2, 1992, at A10.
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