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Kidnaping by Government Order: A Follow-up

Published online by Cambridge University Press:  27 February 2017

Andreas F. Lowenfeld*
Affiliation:
New York University

Extract

In my full-length article U.S. Law Enforcement Abroad, I argued that government-sponsored abduction from foreign countries was not only distasteful, but contrary to international law and U.S. constitutional law. Though I acknowledged that the reported decisions here and abroad did not, on the whole, support my argument, I suggested that these decisions were out of step with contemporary international law and current American views of due process of law. I expressed skepticism about many of the defenses of the practice that had been raised by American officials and had too often, in my judgment, been accepted by American courts. In particular, I urged that no great faith be placed in assertions by the U.S. Government that abduction of persons who ended up in American custody were carried out solely by the police of the foreign country, that the United States had no knowledge of or participation in torture, or that the foreign country really consented to the operation, though it could not say so publicly.

Type
Notes and Comments
Copyright
Copyright © American Society of International Law 1990

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References

1 Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, 84 AJIL 444 (1990).

2 See, in particular, Ker v. Illinois, 119 U.S. 436 (1886).

3 I have drawn for this account on reports in the New York Times, the Washington Post, the Los Angeles Times, U.S. News and World Report (May 14, 1990) and Time (Apr. 23, 1990). It is possible that there will be a judicial finding by the U.S. district judge in California, who conducted a hearing as described below, but the judge had not, as of this writing, issued any finding or order.

4 For a discussion of the jurisdictional aspects of the indictment, see my article in the October 1989 issue of the Journal, 83 AJIL 880 (1989). The prosecution in the case of the persons accused of the abduction and murder of Enrique Camarena—19 at last count, not all of whom are before the court—was brought under 18 U.S.C. §1114, entitled “Protection of officers and employees of the United States,” and §1117, conspiracy to violate (inter alia) §1114. For a similar case, involving acts by Colombian nationals in Colombia, see United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984), cert, denied, 471 U.S. 1137 (1985).

5 Under Article 9(1) of the Treaty of Extradition between the United States and Mexico, May 4, 1978, 31 UST 5059, TIAS No. 9656, each country is authorized, but not required, to extradite its own nationals. Paragraph 2 of Article 9 provides:

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.

In addition to the question of nationality, of course, another problem with extradition of the persons accused in the Camarena case was that the crime was not committed in the territory of the requesting state. Article 1(2) provides on this point:

For an offense committed outside the territory of the requesting Party, the requested Party shall grant extradition if:

a) its laws would provide for the punishment of such an offense committed in similar circumstances, or

b) the person sought is a national of the requesting Party, and that Party has jurisdiction under its own laws to try that person.

6 84 AJIL at 446, 448.

7 Thus, the U.S. Government did not assert in court the legal position set out in the Justice Department’s memorandum of June 1989, described in my article, id. at 484–88. When Vice President Quayle visited Mexico at the end of April and was asked about the so-called snatch authority, he is reported to have dodged the question.

8 See my article, id. at 475–76.

9 This and the following paragraphs are based on the prepared statement of Special Agent Berrellez of May 17, 1990, as submitted to the district court, supplemented by press reports of the hearing.

10 At a speech in Los Angeles on April 23, President Carlos Salinas de Gortari called for stricter respect for international law and an end to “unilateral actions outside the law and infringing the rights of other nations.”

A few days later, the Attorneys General of the two countries met in Santa Fe, and Attorney General Thornburgh presented substantially the same story as came out in the DEA’s testimony before Judge Rafeedie. Mexican officials rejected that version. The meeting, it was reported, “was not a cordial affair.”

President Bush, at his news conference on May 3, 1990, said, “yes, there were some misunderstandings here and I’ve told our key people to eliminate the misunderstanding. We don’t need misunderstanding with Mexico … .”

11 Special Agent Berrellez’s statement dated May 17, 1990, makes no mention of the $20,000 payment for expenses, which was announced in Washington on May 25, or of the continuing payments, which came out at the hearing.

12 This writer has no information about what, if anything, was done about the man sought by the Mexicans.

13 Antonio Garate Bustamante, the former Mexican police lieutenant who was the DEA’s principal intermediary, gave an interview to the Los Angeles Times in which he said that Mexican officials brought the kidnaping on themselves by failing to punish all who had participated in the murder of Camarena. “We’re not the dirty guys,” he is quoted as saying. “We did it because we had a reason and they started it.” DEA Operative Details his Hole in Kidnaping, L.A. Times, Apr. 28, 1990, at A1, col. 2.

14 See Fed. R. Crim. P. 12(b)(1).

2
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