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U.S. Law Enforcement Abroad: The Constitution and International Law, Continued

Published online by Cambridge University Press:  27 February 2017

Extract

In the October 1989 issue of this Journal, I wrote a brief essay concerning the U.S. Constitution and law enforcement abroad. I called attention to the case of Fawaz Yunis, a Lebanese national who was arrested on the high seas by U.S. officers and brought to the United States for trial on charges of aircraft hijacking and hostage taking. Within the space constraints of the Journal’s issue commemorating two centuries of the Constitution, I was able to discuss only one of the questions illustrated by the Yunis case—the question of jurisdiction over crimes committed by aliens abroad. My conclusion, in brief, was that a general reliance on passive personality as the basis for jurisdiction—i.e., the U.S. nationality of victims of the offense—was of doubtful validity under the Constitution, but that jurisdiction based on legislation enacted in implementation of international conventions widely adhered to probably was constitutional. The Yunis case raises two other issues that I believe are of continuing interest: (1) to what extent do the constitutional and statutory restraints on U.S. law enforcement officers apply abroad? and (2) does the so-called Ker-Frisbie rule, according to which a court in the United States may try a person brought before it for a crime over which it has jurisdiction—regardless of how the accused came to be before the court—remain valid and persuasive in the last decade of the 20th century? I want to explore these questions here, bearing in mind that the two questions are related to each other, as well as to the question of jurisdiction to prescribe discussed in the earlier article. Before embarking on the analysis, I want to set forth again in somewhat greater length the saga of Fawaz Yunis, as well as that of two other persons recently seized abroad by authority of the United States for trial in the United States.

Type
Research Article
Copyright
Copyright © American Society of International Law 1990

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Footnotes

*

I want to acknowledge the encouragement, as well as research assistance, of Arif AH, New York University School of Law ’90. I also want to thank Ms. Carol Alpert and Ms. Elizabeth Evans of the New York University Law Library for help in adding modern technology to my ancient research techniques. My colleague Professor Anthony G. Amsterdam was of enormous assistance to me in connection with the discussion of the Fourth Amendment, and of criminal procedure generally.

References

1 Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AJIL 880 (1989).

2 Id. at 884–90.1 exclude from this conclusion jurisdiction based solely on the presence of the accused in the United States where that presence, as in the Yunis case, was involuntary.

3 For a scholarly discussion of that episode, see Cassese, A., Terrorism, Politics and Law (1989)Google Scholar.

4 See Taking Terrorists, U.S. News & World Rep., Sept. 12, 1988, at 26, 28.

5 18 U.S.C. §§1203(b), 32(a)and(b). For a description of these statutes and discussion of U.S. jurisdiction over the offenses in question, see my earlier article, 83 AJIL at 884–92.

6 The Saratoga was the same ship from which U.S. fighter planes had taken off to divert to Sicily the Egypt Air flight carrying the men who had attacked the Italian cruise ship Achille Lauro in October 1985. Eventually, one of the terrorists involved in that assault was sentenced by Italian courts to 30 years in prison for the murder of the American tourist in a wheelchair, and several of the other terrorists received lesser terms. The alleged ringleader, known as Abu Abbas, was, however, released by Italian authorities and is believed to be still at large.

7 See section II infra.

8 See United States v. Yunis, 681 F. Supp. 909, 914–15 (D.D.C. 1988).

9 The spelling of his name varies, and he is also known as Mata (or Matta) del Pozo. For present purposes, I shall refer to him as Matta. The uncontroverted facts are taken from Matta-Ballesteros ex rel. Stolar v. Henman, 697 F. Supp. 1040, 1041–42 (S.D. III. 1988). The controverted facts here set forth are drawn from that case, id. at 1042–43, as well as briefs in litigation in federal courts in Illinois, Florida and California. See also Matta-Ballesteros ex rel. Stolar v. Henman, 697 F. Supp. 1036 (S.D. III. 1988), aff’d, 896 F.2d 255(7thCir. 1990); United States v. Matta-Ballesteros, 700 F. Supp. 528 (N.D. Fla. 1988).

10 Assistant Secretary of State Elliott Abrams, expressing the U.S. administration’s satisfaction at having caught Matta, said, “This could not have happened without General Regalado [the chief of the Honduran armed forces] and it was a brave thing to do.” N.Y. Times, Apr. 6, 1988, at Al, cols. 2–3, and 8, cols. 1–6.

11 Treaty for the Extradition of Fugitives from Justice, Jan. 15, 1909, Honduras-United States, 37 Stat. 1616, TS No. 569, 8 Bevans 892; plus Supplemental Extradition Convention, Feb. 21, 1927, 45 Stat. 2489, TS No. 761, 8 Bevans 903, 85 LNTS 491.

12 The decision of the district court in Illinois denying habeas corpus quotes the report of the medical examination given to Matta upon his arrival at the Marion Penitentiary. 697 F. Supp at 1042. The prisoner evidently showed signs of a struggle, with numerous abrasions and black-and-blue marks. Whether the evidence rises to the level of torture is hard to tell.

13 See N.Y. Times, Apr. 8, 1988, at A1, col. 1. According to the dispatches in the Times, the U.S. Consulate in Tegucigalpa was set afire and at least four people were killed and two wounded during a riot sparked by the expulsion of Matta. Two hundred antiriot officers and fire fighters moved in to quell violence among a crowd of 1,500 protesters, shouting “Matta sí, gringos no.” The demonstration was described as the worst anti-American riot ever in Honduras, traditionally a close ally of the United States. For more on the riots, which U.S. Attorney General Meese said were inspired by the international drug cartel, but diplomats in Honduras said reflected resentment of strong–arm tactics by the U.S. Government, see N.Y. Times, Apr. 10, 1988, § l , a t 16, cols. 1–6; id., Apr. 11, 1988, at A11, cols. 1–6; id., Apr. 13, 1988,at A10, cols. 1–6. For more on Matta himself, see Seized Honduran: Drug Baron or Robin Hood?, id., Apr. 16, 1988, at 4, cols. 1–6.

14 Compare Restatement (Third) of the Foreign Relations Law of the United States §432(2) (1987) [hereafter Restatement]:

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.

15 The facts here set forth are taken from the decision in United States v. Verdugo-Urquidez, 856 F.2d 1214, 1215–17 (9th Cir. 1988), cert, granted, 109 S. Ct. 1741 (1989), based on findings by Judge Lawrence Irving in the district court.

16 See section III infra.

17 Memorandum Decision and Order, No. 86–0107–JLI–CRIM (S.D. Cal. Feb. 5, 1987) (J. Lawrence Irving, J.).

18 Discussed and quoted in part in my earlier article, 83 AJIL at 890–91.

19 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. (1985) [hereafter Senate Terrorism Hearing].

20 Id. at 31.

21 Id. at 63.

22 The reference was to several instances in which U.S. courts had rejected requests to extradite members of the Irish Republican Army sought for murder and assault by Great Britain. See, e.g., In re Mackin, Mag. No. 80 Cr. Misc. 1 (S.D.N.Y. 1981); In re McMullen, Mag. No. 3–78–1899 MG (N.D. Cal. May 11, 1979); both reprinted in Extradition Act of 1981: Hearing Before the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 140, 294 (1981); In re Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984).

23 Senate Terrorism Hearing, note 19 supra, at 63.

24 119 U.S. 436 (1886). The Ker case and the “Ker-Frisbie” rule are discussed at p. 460 infra.

25 342 U.S. 519 (1952). The Supreme Court, in an opinion by Justice Black, wrote: “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.” Id. at 522. For a discussion of this case, see section III(B) infra.

26 Senate Terrorism Hearing, supra note 19, at 69.

27 Id. at 80–81.

28 Id. at 81. Senator Specter, in the floor debate on the bill in February 1986, said in perhaps somewhat of an overstatement: “Before the hearing concluded, Judge Sofaer and I had agreed that such measures should be taken as a last resort, with extreme caution as an extraordinary step, being aware of the sensitive nature, and only after a decision at the highest level.” 132 Cong. Rec. SI384 (daily ed. Feb. 19, 1986).

On January 19, 1986, the New York Times had published an article, quoted by Senator Specter, in which Sofaer was reported as saying he would support “seizure” of fugitives in other countries if the chances for success were reasonable. “He acknowledged that such a move would violate international law,” the article reported, “but said there were legitimate arguments in favor of ‘bending’ the rules in extraordinary circumstances.” N.Y. Times, Jan. 19, 1986, at Al, col. 4.

29 The court of appeals decision in Verdugo, 856 F.2d 1214 (9th Cir. 1988), does not discuss the level of the decision to make the arrest, which was carried out entirely by Mexican police, at the request of U.S. officials. The subsequent search was authorized on the American side by the local DEA agents, without either authorization by a judge or magistrate, or approval by the U.S. Department of Justice. Id. at 1216 n.2. On the Mexican side, the search seems to have been authorized by the Director General of the Judicial Police (MFJP), but efforts to contact the Attorney General’s office were unsuccessful. However, the local representative of the Attorney General’s office apparently did give his consent to the search. See id. at 1226.

30 See, e.g., Restatement, supra note 14, §433(l)(b).

31 Again the Restatement is in accord, though with the qualification “generally.” See §721 and comment see also §722 comment m and Reporters’ Note 16. As appears in the discussion that follows, however, this view is not universally shared and may, in fact, be in jeopardy.

32 354 U.S. 1 (1957).

33 Id. at 5–6. Justices Frankfurter and Harlan, in separate concurrences, made substantially similar statements. Id. at 56 and 66.

34 Indeed, with respect to illegal or undocumented aliens, see Plyler v. Doe, 457 U.S. 202 (1982).

35 On October 4, 1989, Yunis was sentenced to 30 years in prison. In response to Yunis’s plea that he was a Lebanese citizen tricked into leaving his country and then kidnaped, Judge Aubrey, E. Robinson Jr., said, “I’m nothing but a trial judge in one federal court. I don’t run the universe, and I have nothing to do with international affairs.” Wash. Post, Oct. 5, 1989, at A39 Google Scholar, cols. 1–3.

6 The Supreme Court’s decision in Verdugo, which came down after the completion of this article, is discussed in a Coda to the article, pp. 491–93 infra.

37 United States v. Verdugo-Urquidez, 856 F.2d at 1217–19, 1229–30.

38 The principle that as to conduct in the United States, “the Constitution is not confined to the protection of citizens” had been established with respect to the Fourteenth Amendment more than a century ago in Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

39 856 F.2d at 1236 (Wallace, J., dissenting).

40 Id. at 1238.

41 U.S. Const., Preamble. It is perhaps of interest that at one stage of the development of its report on the draft constitution, the Committee of Detail used the phrase “We the People of and the States of New Hampshire, Massachusetts, Rhode Island,” etc. Subsequently, the “and” was dropped, but when the Committee of Style took up the phrase it was worried that not all the states would ratify the Constitution, or would ratify it by the time it entered into effect upon approval by nine states. The solution was to eliminate the list of states and simply begin the Preamble: “We, the People of the United States.” See Farrand, M., the Framing of the Constitution of the United States 190–91 (1913)Google Scholar. Farrand adds, “what other motives may have been at work, we have no record.” For textual confirmation, compare 2 The Records of the Federal Convention Of 1787, at 565 (text of Preamble as referred to the Committee of Style), with id. at 590 (text as reported by the Committee of Style) (M. Farrand ed. 1911).

42 856 F.2d at 1239 (Wallace, J., dissenting). The argument is repeated in the Brief for the United States to the Supreme Court in United States v. Verdugo-Urquidez, No. 88–1353, at 25–26.

43 I do not claim to have made a thorough search of the drafting history of the Bill of Rights. But to take one persuasive source, Madison, in introducing the Bill of Rights into the House of Representatives on June 8, 1789, speaks throughout of the liberty of the people or the rights of the people as if that word were the plural of person. See 1 Annals of Congress 424–50 (Gales, J. ed. 1834)Google Scholar.

The Virginia Declaration of Rights of 1776 also speaks generally of the rights of the people, but section 10, which states that general warrants “are grievous and oppressive” and may fairly be considered an antecedent of the Fourth Amendment, uses the word “person or persons.” For detailed history of the amendment and its antecedents, see Lasson, N., The History and Development of the Fourth Amendment to the Constitution of the United States, esp. at 79105 (1937)Google Scholar; Landynski, J., Search and Seizure and the Supreme Court 1948 (1966)Google Scholar.

44 United States v. Yunis, 859 F.2d 953, 957 (D.C. Cir. 1988) (stipulation); and expressly in concurring opinion of Judge Mikva, id. at 970–71.

45 See United States v. Yunis, 681 F. Supp. at 917 n. 14; see also, e.g., United States v. Peterson, 812 F.2d 486, 489 (9th Cir. 1987).

46 Judge Mansfield in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), discussed in section III(C) infra, saw the debate differently: “Like the Fifth Amendment guarantee of due process, the Fourth Amendment refers to and protects ‘people’ rather than ‘areas,’ . . . or ‘citizens’ . . . .” Id. at 280.

47 In the actual case, the court of appeals examined the charge that Yunis’s constitutional rights had been violated, but concluded that they had not been. Accordingly, it reversed that part of the district court’s decision that suppressed Yunis’s confession. 781 F. Supp. at 921–29. The D.C. Circuit agreed that the conduct of the Government was subject to measure by the standards of the Constitution, thus disagreeing with the position of Judge Wallace and the Solicitor General.

48 See, e.g., Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968), cert, denied, 395 U.S. 960 (1969); Brulay v. United States, 383 F.2d 345 (9th Cir.), cert, denied, 389 U.S. 986 (1967); and other cases cited in Restatement, supra note 14, §433 Reporters’ Note 1.

49 232 U.S. 383 (1914).

50 367 U.S. 693 (1961).

51 See, e.g., Byars v. United States, 273 U.S. 28 (1927).

52 See Lustig v. United States, 338 U.S. 74 (1949).

53 See Gambino v. United States, 275 U.S. 310(1927). For a concise discussion of these cases, see 1 W. Lafave, Search and Seizure §1.1 (2d ed. 1987).

54 Indeed, the silver platter doctrine had been rejected by the Supreme Court a year before Mapp was decided. See Elkins v. United States, 364 U.S. 206 (1960). The silver platter doctrine remains relevant to searches conducted by private parties, such as industrial security officers or private guards. See, e.g., United States v. Jacobsen, 466 U.S. 109, 113 (1984).

55 In addition to the decisions cited at note 48 supra, see, e.g., United States v. Morrow, 537 F.2d 120 (5th Cir. 1976), cert, denied, 430 U.S. 956 (1977); United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert, denied, 429 U.S. 1038 (1977); United States v. Peterson, 812 F.2d 486 (9th Cir. 1987).

56 See the Chief Justice’s statement, in dissent, in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 415 (1971), that the exclusionary rule is “both conceptually sterile and practically ineffective.” It is fair to add that later in the same opinion, Chief Justice Burger writes, “I do not propose that we abandon the suppression doctrine until some meaningful alternative can be developed.” Id. at 420.

57 See generally “The Exclusionary Rule under Attack,” 1 W. LaFave, supra note 53, §1.2; Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974).

58 Cf. Rochin v. California, 342 U.S. 165 (1952).

59 Compare the requirement called for by the Restatement, supra note 14, §442, that transnational discovery requests in civil actions be made not by counsel directly, but only upon court order.

60 See generally 1 W. LaFave, supra note 53, §3.1(b).

61 420 U.S. 103, 114(1975).

62 There are two additional reasons that it might be appropriate to construe the Fourth Amendment as requiring a judicial determination of probable cause before an arrest abroad, even though a postarrest judicial determination is all that is required in the case of a felony arrest within the United States.

First, the principal reason of policy for allowing felony arrests (unlike searches) to be made upon probable cause without a warrant in domestic cases is that occasions for arrest frequently arise without forewarning to the officer, evolve out of fast–breaking situations encountered in the daily round of police activity, and involve suspects who may get away and thereafter avoid apprehension if the officer delays long enough to seek a warrant. These circumstances are so commonly characteristic of the ordinary felony arrest that it has been deemed appropriate to “authorize warrantless public arrests on probable cause rather than encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.” United States v. Watson, 423 U.S. 411, 423–24 (1976). Felony arrests abroad, by contrast, almost never arise out of adventitious encounters between suspects and law enforcement officers as the officers pursue their daily rounds; they are planned operations, necessarily arranged in advance, with ample time to seek a warrant in virtually all cases.

Second, the Supreme Court has recognized that the degree of Fourth Amendment justification required for police activity that intrudes upon the privacy or security of the individual varies with the gravity of the intrusion. E.g., Winston v. Lee, 470 U.S. 753 (1985). One notable application of this principle has been the allowance of brief “stops,” less extensive than full-blown arrests, on “reasonable suspicion” rather than probable cause. Compare Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk on street on basis of reasonable suspicion permitted), with Hayes v. Florida, 470 U.S. 811 (1985) (transportation from home to police station for finger-printing without probable cause disallowed). Surely, the intrusion upon the privacy and security of an individual when he is taken into custody abroad and transported to the United States to face criminal charges, rather than being brought before the nearest magistrate, is as much greater than that of an ordinary arrest as the intrusiveness of a stop is less than that of an ordinary arrest. See Amsterdam, note 57 supra, at 392.

63 383 F.2d 345, 348 (9th Cir.), cert, denied, 389 U.S. 986 (1967).

64 See, e.g., United States v. Marzano, 537 F.2d 257, 269–71 (7th Cir. 1976), cert, denied, 429 U.S. 1038 (1977), involving the location by two FBI agents in the Cayman Islands of a man wanted for bank robbery in Chicago. The account in the decision states that the FBI agents accompanied the local police superintendent while the latter made the arrest and put the suspect on a plane to Miami.

65 See Lowenfeld, note 1 supra, at 881.

66 Compare Justice Frankfurter’s opinion for a unanimous Supreme Court in Mallory v. United States, 354 U.S. 449, 454(1957), involving the arrest of a suspect early in the afternoon in the District of Columbia, detained for several hours without advice or warnings at police headquarters, and not sought to be brought before a magistrate until he had confessed, late in the evening:

The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on “probable cause.” The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be “booked” by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.

The case involved interpretation of the Federal Rules of Criminal Procedure rather than the Constitution itself. The point, however, is clear: a planned arrest must be seen as a whole, and is only acceptable when all of its parts comply with the rules.

67 Verdugo, 856 F.2d at 1229–30.

68 Id. at 1249 (Wallace, J., dissenting).

69 W. at 1248.

70 Brief for the United States, supra note 42, at 39.

71 See Payton v. New York, 445 U.S. 573 (1980).

72 New Jersey v. T.L.O., 469 U.S. 325 (1985).

73 United States v. Montoya de Hernandez, 473 U.S. 531 (1985). Both of these cases are cited in the Solicitor General’s brief.

74 Compare, e.g., Smith v. Maryland, 442 U.S. 735, 735–740 (1979).

75 See text at notes 18–28 supra.

76 18 U.S.C. §1201 (1988).

77 See 1 W. LaFave, supra note 53, §1.9 and sources there cited, some of which are discussed hereafter.

78 The evidence may consist not only of physical objects such as an invoice or a gun, but also of statements made by the person unlawfully arrested, incriminating herself or another person. See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963).

79 119 U.S. 436(1886).

80 Sept. 12, 1870, 18 Stat. 719, TS No. 719, 10 Bevans 1052 (entered into force July 27, 1874).

81 119 U.S. at 438. The brief for Ker before the Supreme Court adds more details:

that Julian and others arrested Ker in Lima, where he resided, on April 3, 1883, without any authority in law; that they immediately carried him to Callao and forcibly placed him on the U.S. man-of-war Essex, and confined him there until May 10th; that the Essex then brought him to Honolulu, and he was kept on board, in the harbor, several weeks until July 2d, when he was forced to go from the Essex, by the officers thereof and Julian, on board of the “City of Sidney” and carried to San Francisco, where he arrived July 9, 1883.

82 119 U.S. at 440.

83 Id. at 442.

84 Id. at 443. The Court added a curious afterthought:

The question of how far his forcible seizure in another country, and transfer by violence, force, or fraud, to this country, could be made available to resist trial in the State court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection. . . .

However this may be, the decision of that question is as much within the province of the State court, as a question of common law, or of the law of nations, of which that court is bound to take notice, as it is of the courts of the United States. And though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.

Id. at 444.

85 It is fair to point out that when Julian arrived in Peru in the spring of 1883, that country was engaged in the last years of the War of the Pacific (1879–1883), which ended with the Treaty of Ancon of Oct. 20, 1883, confirming defeat and massive loss of territory for Peru (and Bolivia) and a major victory for Chile.

In fact, what was left of the Peruvian Government was in Arequipa, in the mountains 85 miles from Lima. The Peruvian capital was under military occupation by Chilean forces under the command of Admiral Patricio Lynch. Evidently, Lynch had no interest in upholding Peruvian sovereignty, and may even have aided the messenger/detective in putting Ker aboard the American warship. For more on the strange facts of the Ker case, see Fairman, Ker v. Illinois Revisited, 47 AJIL 678, 684–85 (1953), based in part on the brief to the Supreme Court by the Attorney General of Illinois.

86 See, e.g., the discussion of the Argoud case at notes 166–69 infra.

87 119 U.S. 407 (1886).

88 Aug. 9, 1842, 8 Stat. 576, TS No. 119, 12 Bevans 82. The extradition provision is Article X.

89 119 U.S. at 415–17.

90 See, for a brief statement, Restatement, supra note 14, §477.

91 119 U.S. at 415.

92 Id. at 435–36 (Waite, C.J., dissenting).

93 Compare Restatement, supra note 14, §477 comment b.

94 I almost wrote invoked, but that term, which might fit Malta and Verdugo, does not fit Ker, since the President and the Secretary of State had issued a requisition under the treaty, which (in the prewireless days) they had entrusted to the messenger, who, as we saw, did not deliver it but, rather, took matters (and the prisoner) into his own hands.

95 It is interesting that the Court itself suggested that if Ker had been brought to the United States under the extradition treaty with Peru, “it seems probable . . . that he might have successfully pleaded that he was extradited for larceny, and convicted . . . of embezzlement” (119 U.S. at 443)—i.e., the same defense raised successfully by Rauscher.

96 Fairman, note 85 supra, at 682–83, points out also that Rauscher came to the Supreme Court on a certificate of division of opinion from the U.S. circuit court; thus the Supreme Court could pass on “any question which occurred on the trial.” Ker came up from a state supreme court, with a more limited scope of review. Compare Rev. Stat. §790 (1875), comparable to 28 U.S.C. §1257(3) (review of state court judgments), with Rev. Stat. §693 (1875), comparable to 28 U.S.C. §1254(3) (certification from federal courts of appeal).

97 See, e.g., Dickinson, Jurisdiction Following Seizure or Arrest in Violation of International Law, 28 AJIL 231 (1934); Garcia-Mora, Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by Force or Fraud: A Comparative Study, 32 Ind. L.J. 265(1952); Morgenstern, Jurisdiction in Seizures Effected in Violation of International Law, 29 Brit. Y.B. Int’l L. 265 (1952); O’Higgins, Unlawful Seizure and Irregular Extradition, 36 Brit. Y.B. Int’l L. 279 (1960). See also Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, Art. 16, 29 AJIL 435, 442, 623–32 (Supp. 1935), which would have provided that “no State shall prosecute or punish any person who has been brought within its territory . . . 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.”

98 Compare Kear v. Hilton, 699 F.2d 181 (4th Cir. 1983), concerning extradition to Canada of bounty hunters who had kidnaped a Canadian citizen charged with real estate fraud in Florida, and statements about the case by the U.S. Secretary of State and Attorney General on that case reproduced in 78 AJIL 207 (1984).

99 Ker v. Illinois, 119 U.S. at 444. The paragraph continues: “Whether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case, which we cannot here consider.” Id.

100 The first significant Fourth Amendment case had been decided only a few months earlier. Boyd v. United States, 116 U.S. 616 (1886).

101 See 1 W. LaFave, supra note 53, §1.2; Amsterdam, supra note 57, esp. at 429–30.

102 Frisbie v. Collins, 342 U.S. 519 (1952), discussed at notes 106–17 infra.

103 127 U.S. 700 (1888). Mr. Justice was in fact the warden of the Kentucky prison where Mahon was being held.

104 Id. at 708.

105 Justice Bradley, with Justice Harlan concurring, dissented:

In my opinion the writ of habeas corpus was properly issued, and the prisoner, Mahon, should have been discharged and permitted to return to West Virginia.. . . It is undoubtedly true that occasional instances of unlawful abduction of a criminal from one State to another for trial, have been winked at; and it has been held to be no defence for the prisoner on his trial. Such precedents are founded on those which have arisen where a criminal has been seized in one country and forcibly taken to another for trial, in the absence of any international treaty of extradition. It is obvious that such cases stand on a very different ground. It is there a question between independent nations bound by no ties of mutual obligation on the subject, and at liberty to adopt such means of redress and retaliation as they please. But where an extradition treaty does exist, and a criminal has been delivered up under it, he cannot, without violating the treaty, be tried for any other crime but that for which he was delivered up. United States v. Rauscher . . . . It is true that in the same volume is found the case of Ker v. Illinois, . . . in which it was held not to be a good plea to an indictment, that the prisoner was kidnapped from Peru, with which country we had an extradition treaty. But this was because . . . the prisoner himself cannot set up the mode of his capture by way of defence, if the State from which he was abducted makes no complaint. Peru made none.

But this is not such a case. The State from which Mahon was abducted has interposed . . . .

Id. at 715–17 (Bradley, J., dissenting).

106 342 U.S. 519(1952).

107 18 U.S.C. §1201.

108 Collins v. Frisbie, 189 F.2d 464 (6th Cir. 1951).

109 After disposing of a question about availability of federal habeas corpus, the discussion of the issue here considered runs to less than a page in the official reports, including a summary of the reasoning of the court of appeals.

110 In addition to Ker and Mahon, the Court cited Lascelles v. Georgia, 148 U.S. 537 (1893), and In re Johnson, 167 U.S. 120 (1897), both domestic cases.

111 342 U.S. at 522–23.

112 See section IV(A) infra.

113 342 U.S. 165 (1952).

114 Id. at 172, 173.

115 Scott, A. Jr., Criminal Jurisdiction of a State over a Defendant Based upon Presence Secured by Force or Fraud, 37 Minn. L. Rev. 91, 98 (1953)Google Scholar.

116 The Supreme Court 1951 Term, 66 Harv. L. Rev. 89, 127 (1952).

117 See Gerstein v. Pugh, 420 U.S. 103, 119 (1975), discussed at note 61 supra. See also United States v. Crews, 445 U.S. 463,477,478 (1980) (Powell, J., and White, J., concurring separately) (in-court identification by victim of assailant upheld, though earlier lineup identification not supported by probable cause).

118 See text at note 32 supra.

119 140 U.S. 453 (1891). The case involved a British national serving as a seaman aboard a U.S. flag vessel, charged with murdering a ship’s officer while the ship was at anchor in Yokohama harbor. Ross was tried in Japan by a U.S. consular court consisting of the Consul General and four associates—but no jury—and his conviction was unanimously upheld by the Supreme Court:

By the Constitution [Justice Field wrote for the Court] a government is ordained and established “for the United States of America,” and not for countries outside of their limits. The guarantees it affords . . . apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad.

Id. at 464.

120 354 U.S. at 12. See generally Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 Wm. & Mary L. Rev. 11, esp. at 18–24 (1985).

121 United States v. Toscanino, 500 F.2d 267 (2d Cir.), reh’g denied, 504 F.2d 1380 (2d Cir. 1974).

122 W. at 269–70.

123 Id. at 272 (quoting Griswold, The Due Process Revolution and Confrontation, 119 U. Pa. L. Rev. 711 (1971)).

124 342 U.S. 165 (1952). See text at note 113 supra.

125 367 U.S. 643 (1961).

126 United States v. Archer, 486 F.2d 670, 674–75 (2d Cir. 1973), an opinion by Judge Friendly, quoting at length from Justice Brandeis’s famous dissent in Olmstead v. United States, 277 U.S. 438, 484–85(1928).

127 500 F.2d at 274–75.

128 Id. at 277. The distinctions were the allegation of violation of international treaties, in particular Article 2(4) of the United Nations Charter and Article 17 of the Charter of the Organization of American States.

129 Case Comment, United States v. Toscanino, 88 Harv. L. Rev. 813, 816 (1975). For a different view, see 50 N.Y.U. L. Rev. 681 (1975).

130 United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert, denied, 421 U.S. 1001 (1975). The reason for the peculiar citation form is that Lujan appealed from the denial of a petition for habeas corpus. Gengler was the Superintendent of the Federal Detention Headquarters in New York City.

131 There was an extradition treaty between the United States and Bolivia, Treaty of Extradition, Apr. 21, 1900, 32 Stat. 1857, TS No. 399, 5 Bevans 735 (entered into force Jan. 22, 1902).

132 510 F.2d at 65–66. Fifteen years later, in a letter to the editor stimulated by a court ruling that seemed, as he said, to pit the judiciary against the Presidency in the “war on drugs,” Judge Kaufman wrote:

Even in “war,” there are rules—as formulated in the Constitution.

Blind efficiency should never become the ultimate goal of a constitutional democracy. . . . While it is nice to have the trains run on time, it is equally important that national policy goals be implemented constitutionally.

N.Y. Times, Dec. 11, 1989, at A22, col. 4.

135 510 F.2d at 69 (Anderson, J., concurring). The published report gives no reason for the denial of the petition for rehearing en banc; Judge Mulligan dissented from the denial of rehearing in a brief opinion in which one other judge concurred. United States v. Toscanino, on petition for rehearing, 504 F.2d 1380 (2d Cir. 1974).

134 See section IV(B) infra.

135 515 F.2d 68 (2d Cir.), cert, denied, 423 U.S. 847 (1975).

136 Id. at 70.

137 The opinion of the court states, in a footnote, that extradition was not a viable alternative because under the United States-Chile Extradition Treaty, Apr. 17, 1900, 32 Stat. 1850, TS No. 407, 6 Bevans 543 (entered into force June 26, 1902), a Chilean national could not be extradited by Chile.

138 515 F.2d at 70–71.

139 Id. at 71.

140 In fact, Toscanino himself, on remand, failed to meet this burden, which is perhaps not surprising, since if he is to be believed, he was blindfolded at all relevant times. See United States v. Toscanino, 398 F. Supp. 916 (E.D.N.Y. 1975). See also United States v. Cordero, 668 F.2d 32 (1st Cir. 1981).

141 For citation to cases attempting to challenge arrests or convictions on the basis that the accused was abducted from abroad, see Restatement, supra note 14, §433 Reporters’ Note 3; 28 A.L.R. Fed. 685 (1975 & Supp. 1989); 1 W. LaFave, supra note 53, §1.9(a) n.18. 142 515 F.2d at 72–73 (Oakes, J., concurring).

143 See generally Mann, F. A., Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity 407 (Dinstein, Y. ed. 1989)Google Scholar, reprinted in Mann, Further Studies in International Law 339 (1990). Of course, this proposition is not pertinent to a seizure on the high seas, which is evidently why Yunis was lured to the yacht beyond the territorial waters of Cyprus. See pp. 445–46 supra.

144 N.Y. Times, Dec. 1, 1984, at A1, cols. 3–4.

145 See Extradition Treaty, United States–Federal Republic of Germany, June 20, 1978, 32 UST 1485, TIAS No. 2794, 223 UNTS 3.

146 For a brief summary of the procedures when the United States is the requested state, partly statutory and partly constitutionally required, see Restatement, supra note 14, §478.

147 See, e.g., In re Doherty, note 22 supra, refusing a request for extradition on a charge of murder of a British Army officer, on the ground that the act charged was a political offense.

148 It seems hardly necessary to adduce a citation; but for the sake of completeness, see, e.g., 1 L. Oppenheim, International Law 295 & n.1 (Lauterpacht, H. 8th ed. 1955)Google Scholar:

A State must not perform acts of sovereignty in the territory of another State, [text]

It is therefore 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, [note]

149 290 U.S. 276 (1933).

150 Id. at 287.

151 See text at notes 87–96 supra.

152 299 U.S. 5(1936).

153 T o be precise, the Supreme Court said that “the Constitution creates no executive prerogative to dispose of the liberty of the individual.. . . [T]he legal authority does not exist save as it is given by act of Congress or by the terms of a treaty . . . .” Id. at 9. Since the first extradition statute of 1848, U.S. legislation has always read substantially as does the present version, conferring on the Secretary of State the authority to extradite a fugitive, but “only during the existence of any treaty of extradition with such foreign government.” 18 U.S.C. §3181 (1988). See also id. §3184.

154 Accord Restatement, supra note 14, §475(a) and comment c thereto.

155 I believe this argument would be sufficient to conclude that neither the FBI nor the magistrate could accept the proposition suggested in the text. In addition, an arrest may be made, and a warrant may issue, only upon probable cause that an offense has been committed against the law of the United States. That would not be true in the case of the German banker murdered in Frankfurt.

156 GA Res. 217A (III), UN Doc. A/810, at 71 (1948). The United States was a principal sponsor of the Universal Declaration.

157 Id., Art. 9. See also Art. 3 (right to security of person) and Art. 5 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment).

158 Dec. 16, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967). As of year–end 1989, over 80 states were parties to the Covenant; the United States had signed but not ratified it.

159 Id., Art. 9(1). See also Art. 7 (no degrading treatment); Art. 9(3) (anyone arrested shall be brought promptly before a judge); Art. 9(4) (right to challenge lawfulness of detention before a court); Art. 10(1) (all persons deprived of their liberty shall be treated with humanity).

160 Optional Protocol to the International Covenant on Civil and Political Rights, note 158 supra, 999 UNTS at 302, 6 ILM at 383.

161 Views of Human Rights Committee on Complaint of Lopez, July 29,1981, 36 UN GAOR Supp. (No. 40) at 176–84, UN Doc. A / 3 6 / 4 0 (1981).

162 See Preuss, Kidnapping of Fugitives from Justice on Foreign Territory, 29 AJIL 502 (1935); Preuss, Settlement of the Jacob Kidnapping Case, 30 AJIL 123 (1936).

163 S. Africa Act 44 of 1950, now known as Internal Security Act 44 of 1950.

164 Abrahams v. Minister of Justice, [1963] 4 S. Afr. L. Rep. 542, 544–49 (Cape Prov. Div. 1963).

165 For a list of such cases, see Restatement, supra note 14, §432 Reporters’ Note 2; also articles cited at note 97 supra. For a discussion of more recent cases, see Sponsler, International Kidnapping, 5 Int’l Law. 27 (1979); Findlay, Abducting Terrorists Overseas for Trial in the United States: Issues of International and Domestic Law, 23 Tex. J. Int’l L. 1 (1988).

166 Re Argoud, 1964 Bull. Crim. 420, 1965 Annuaire Français de Droit International 935, 45 ILR 90, 92 Journal de Droit International Public [Clunet] 93 (1965) (Cass. Crim. June 4, 1964).

167 92 Clunet at 96, 45 ILR at 94.

168 One can only speculate about why the note from the Federal Republic arrived so late. The Bundestag (Parliament) had debated the Argoud case on Nov. 6, 1963, and by agreement of all parties had requested that the West German Government demand the return of Argoud to Germany. See Doehring, Restitutionsanspruch, Asylrecht und Auslieferungsrecht im Fall Argoud, 25 Zeitschrift Für Ausländisches Öffentliches Recht und Völkerrecht 209, 210 (1965).

169 92 Clunet at 100, 45 ILR at 97–98.

170 Professor Doehring, note 168 supra, at 216–21, raises the question whether the Argoud case could be seen as a disguised extradition, and if so whether extradition through legal channels would have been possible in view of Argoud’s political activities. None of the American cases here discussed raise that problem.

171 See Schachter, International Law in Theory and Practice: General Course in Public International Law, 178 Recueil des Cours 9, ch. XV, esp. at 329–30 (1982 V).

172 9 B. & C. 446, 109 Eng. Rep. 166 (K.B. 1829).

173 See text at notes 18–28 supra.

174 It is interesting, for example, that the Constitutional Court of the Federal Republic of Germany (Bundesverfassungsgericht), in a recent case involving the abduction from France to Germany of a person accused of tax evasion, cited Ker and Lujan in reaching the conclusion that there is no general rule of international law that may be derived from the practice of states to the effect that an unlawfully abducted person may not be tried—at least if the state from which the prisoner has been abducted does not protest and demand his return. 39 Neue Juristische Wochenschrift 1427 (1986) (Fed. Const. Ct. July 17, 1985).

175 Sec. 481(c) of the Foreign Assistance Act of 1961 as amended, 22 U.S.C. §2291(c), as enacted by §504(b) of the International Security Assistance and Arms Export Control Act of 1976, Pub. L. No. 94–329, 90 Stat. 764. When the bill was first passed by Congress, President Ford vetoed it, on the ground that “the bill would seriously obstruct the exercise of the President’s constitutional responsibilities for the conduct of foreign affairs.” 12 Weekly Comp. Pres. Doc. 828 (May 7, 1976). There is no indication that this view pertained to the Mansfield Amendment. When the amendment was included in a revised Arms Export Control Act, the President approved it and it became law.

176 Senate Comm. on Foreign Relations, Internal Security Assistance and Arms Export Control Act, Report on S. 2662, S. Rep. No. 605,94th Cong., 2d Sess. 55 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News 1378.

177 Added by Pub. L. No. 95-384, §3, 92 Stat. 730 (1978). The Senate Report specified that “[t]he term ‘U.S. person’ is intended to signify (1) a citizen of the United States or (2) any alien lawfully admitted to the United States for permanent residence.” Senate Comm. on Foreign Relations, The International Security Assistance Act of 1978, Report on S. 3075, S. Rep. No. 841, 95th Cong., 2d Sess. 13 (1978).

178 22 U.S.C. §2291(c)(l)–(6), enacted by Pub. L. No. 99–570, §2009, 100 Stat. 32 (1986).

179 One new feature of the 1986 version of the Mansfield Amendment was a provision authorizing the Secretary of State to waive the prohibition on participation by U.S. officers in a direct police arrest if he determined that application of the provision “would be harmful to the national interest of the United States.” 22 U.S.C. §2291(c)(2) as it read from 1986 to 1989. That provision was repealed in the 1989 amendment, note 187 infra,

180 House Comm. on Foreign Affairs, International Narcotics Control Act of 1986, Report on H.R. 5352, H.R. Rep. No . 798, 99th Cong., 2d Sess. 10 (1986).

181 See pp. 472–73 supra.

182 HOUSE Comm. on Foreign Affairs, 99th Cong., 2d Sess., Markup on H.R. 5352, at 10–11 (Comm. Print 1986). As the further exchange points out, the prohibition on presence of a U.S. officer at an interrogation, present 22 U.S.C. §2291(C)(5), applies by its terms only to “United States persons” (see note 177 supra); it is thus not conclusive on the issue discussed in section II of this paper. My point in quoting the exchange is only to illustrate that Congress was well aware of the sometimes conflicting pull of crime control and international and constitutional law.

183 See 131 Cong. Rec. S6145 (daily ed. May 15, 1985).

184 Id.

185 22 U.S.C. §2291(c)(l), second sentence, as enacted in 1986, note 179 supra.

186 See, e.g., the cases cited in Restatement, supra note 14, §433 Reporters’ Note 1.

187 22 U.S.C. §2291(c)(2), enacted by Pub. L. No. 101–231, §15, 103 Stat. 1954, 1963–64 (1989).

188 United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988), another case in which the prisoner alleges that he was kidnaped by U.S. agents, whereas the U.S. Government maintains that its agents did not participate in the alleged kidnaping, other than as observers.

My colleague Professor Theodor Meron called my attention to §3202(d) of the Maritime Drug Law Enforcement Prosecution Improvements Act of 1986, 100 Stat. 3207–96, 46 U.S.C. app. § 1903(d), which reads:

A claim of failure to comply with international law in the enforcement of this Act may be invoked solely by a foreign state, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defese to any proceeding under this Act.

By its terms this Act applies only to interdiction at sea, and I am not aware of any similar legislation applicable to interrogations, arrests, or abductions from foreign soil. Congressional efforts to restrict the discretion of federal courts on determination of their own jurisdiction are, of course, generally disfavored, and one would hope that this provision does not become a precedent, particularly without specification of the international law in question. At any rate, if the argument made throughout this article were accepted, a person abducted from a foreign country for prosecution in the United States could assert a defense based on violation of the U.S. Constitution and laws, with the argument based on violation of international law having only a supporting role.

189 See section III(A) supra.

190 4B Op. Off. Legal Counsel 543 (1980). The opinion is signed by John H. Harmon, Assistant Attorney General.

191 Id. at 549.

192 As the opinion explains elsewhere, “asylum state” is used simply as the state where the fugitive resides, without any implication that that

193 See section III(C) supra.

194 4B Op. Off. Legal Counsel at 547.

195 Id. at 549. The opinion discusses the question whether the operation would violate Article 2(4) of the United Nations Charter, but concludes that even if so, the Charter is not a self-executing treaty and thus the violation would not affect the criminal jurisdiction of American courts. Id. at 548–49.

196 28U.S.C. §533(1982).

197 The opinion states in a footnote at this point: “We are assuming that it can be established that extradition is an inadequate means of apprehension in this case. We emphasize here the importance of an ability to make such a showing.” 4B Op. Off. Legal Counsel at 552 n.26.

198 Id. at 552. Note that this analysis is the obverse of the analysis of jurisdiction to prescribe and to enforce made in §§402, 403, and 431 of the Restatement, supra note 14. The Restatement maintains that though one of the formal bases of jurisdiction is present, if the exercise of jurisdiction in the particular circumstance is unreasonable, it violates international law. The Office of Legal Counsel here maintains that if an exercise of enforcement jurisdiction violates international law, it is unreasonable and therefore unauthorized under a general U.S. statute. Compare also Restatement §115 and comment a thereto, §403 comment g and Reporters’ Note 2.

199 4B Op. Off. Legal Counsel at 556.

200 Id. at 556–57.

201 Id. at 557.

202 See my earlier article, supra note 1, esp. at 884–92. The point is made in the U.S. Dep’t of Justice Manual §9–12.136 (Supp. 1989–2).

203 See Taking on Terrorists, U.S. News & World Rep., Sept. 12, 1988, at 27; Wall St. J., Feb. 20, 1987, at 1, col. 6. The Wall Street Journal article, quoting unnamed “administration law enforcement and intelligence officials,” reports that the “snatch, grab and deliver” operations were to be supervised by Colonel Oliver North and CIA Director William Casey; William Webster, then the director of the FBI and a former federal judge, is reported to have had serious misgivings, on the ground that it probably violated international law and would not succeed.

204 L.A. Times, Oct. 13, 1989, at 1A, col. 5.

205 N.Y. Times, Oct. 14, 1989, at 6, cols. 4–6.

206 Wash. Post, Oct. 14, 1989, at A15, cols. 1–3. The opinion was entitled “Authority of the FBI to Override Customary or Other International Law in the Course of Extraterritorial Law Enforcement Activities.” The critic mentioned in the Post’s headline was Congressman Edwards of California. “If we do it,” he was quoted in the Post as saying, “that means Moscow could authorize the KGB to arrest somebody in our country.” Id.

207 N.Y. Times, note 205 supra, at A6, col. 4.

208 Id. Iran, which perceived the news as directed against it, responded by adopting a law authorizing Iranian officials to arrest Americans anywhere and put them on trial. Wash. Post, Nov. 2, 1989, at A51, cols. 1–2.

209 Not only would the head of the Office of Legal Counsel not release the opinion (which was not classified) to the present writer, though he was very courteous in returning my telephone call, but the Department refused a formal request for the text of the opinion from Representative Don Edwards, Chairman of the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee, in advance of a hearing on the opinion. Exchange of Letters Edwards to Att’y Gen. Thornburgh, Nov. 2, 1989; Asst. Att’y Gen. Crawford to Edwards, Nov. 8, 1989.

210 As these lines are written, the report of the hearing has not yet been published. The excerpts are taken from the witnesses’ prepared texts. An account of the hearing appears in the Wash. Post, Nov. 9, 1989, at A72, cols. 1–6.

211 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).

212 Barr, The Legality as a Matter of Domestic Law of Extraterritorial Law Enforcement Activities that Depart from International Law 4–5 (statement before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, Nov. 8, 1989) [hereafter House Hearing].

The reference in quotation marks is to the familiar case of The Paquete Habana, 175 U.S. 677, 700 (1900). The full paragraph from which the quotation is taken reads:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

213 Barr, supra note 212, at 8. In support of this view, the statement cites Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert, denied, 479 U.S. 889 (1986). In that case, the district court found that the indefinite detention of certain undocumented aliens who had come to the United States from Cuba on the Mariel boat lift was arbitrary and in violation of international law, but that the Attorney General’s decision to detain them was nevertheless binding on the courts, and the court of appeals affirmed.

For Professor Henkin’s criticism of this decision, concluding that “neither precedent nor plausible argument” supports the holding that the President can disregard international law in service of domestic needs, see Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 883–85 (1987).

For a range of views on the subject of the binding nature of customary law, none agreeing with Assistant Attorney General Barr’s approach, see Agora: May the President Violate Customary International Law?, 80 AJIL 913 (1986); and its continuation, 81 AJIL 371 (1987).

214 See Henkin, note 213 supra, at 884, pointing out that whatever power the President has to derogate from international law may be exercised only when he is acting within his constitutional powers.

215 Barf, supra note 212, at 13. In another opinion prepared before the House hearing but not disclosed until December 16,1989, Mr. Barr advised that U.S. military forces have the legal authority to conduct law enforcement operations outside the United States, including pursuing and apprehending international terrorists and drug traffickers. Wash. Post, Dec. 16, 1989, at Al, col. 5; L.A. Times, Dec. 17, 1989, at Al, col. 5.

216 Sofaer, The International Law and Foreign Policy Implications of Nonconsensual Extraterritorial Law Enforcement Activities 5 (statement before House Hearing, supra note 212, Nov. 8, 1989).

217 Mat 6.

218 Id. at 9.

219 Id. at 9, 11.

220 Id. at 12.

221 Id. at 15.

222 This is not the place to engage in an elaborate discussion of the law of self-defense. Since Mr. Sofaer cites Article 51 of the UN Charter, however, it seems not unfair to point out that while the Charter’ speaks of the inherent right of self-defense, i.e., a right that is preserved, rather than conferred on member states by the Charter, the drafters were conscious of the misuse of the doctrine of self-defense by Germany and Japan at the start of World War II, and specified that the right existed if an armed attack occurs against a member state, and until the Security Council has taken the measures necessary to maintain international peace and security. There is no suggestion in any of the background of Article 51 or the massive writing on that article that it can be used to justify law enforcement directed against individual suspects located in another state.

223 L.A. Times, June 22, 1988, §2, at 3, col. 1. Compare the account taken from the court papers, pp. 448–49 supra.

224 L.A. Times, supra note 223. The district judge, sitting in a trial involving Verdugo other than the one discussed in section 1(C) of this article (but arising from the same arrest), declined to dismiss the indictment.

225 Senate Terrorism Hearing, note 19 supra, at 41. I should repeat that Mr. Sofaer took issue with that statement, id. at 63, and again at 80.

226 Compare Mann, note 143 supra, at 409:

It is submitted that if the State does or says nothing, the illegality remains. It is impossible to infer consent from silence or inactivity. Even if the State declares that it does not require the return of the abducted person, it is at least arguable that it waives the remedy rather than the wrong.

Dr. Mann goes on to suggest, in discussing the Lujan case, note 130 supra, that the state trying the abducted person—i.e., the United States—should bear the burden of proving that the state from which the prisoner was abducted has given its consent.

227 Stephan, Constitutional Limits on International Rendition of Criminal Suspects, 20 Va. J. Int’l L. 777, 800(1980).

228 Compare, e.g., Korematsu v. United States, 323 U.S. 214 (1944), sustaining massive internment of Japanese–Americans, which would certainly not be tolerated today; with United States v. Caltex, Inc., 344 U.S. 149 (1952), denying compensation to owners of oil installations destroyed by the U.S. military to prevent them from falling into enemy hands, which might still pass muster.

229 110 S. Ct. 1056 (1990).

230 Id. at 1078 (Blackmun, J., dissenting).

231 Id. at 1068. Justice Stevens also wrote that the warrant clause of the amendment has no application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches. For discussion of that point, see text at note 67 supra.

232 See text at notes 70–73 supra.

233 See text at note 42 supra.

234 110 S. Ct. at 1061.

235 Id.

236 See notes 41, 43 supra.

237 Warren, C., The Making of the Constitution 508–09 (1928)Google Scholar.

238 The Federalist No. 84, at 518 (Hamilton) (Rossiter, C. ed. 1961)Google Scholar.

239 1 Annals of Cong. 437 (Gales, J. ed. 1834)Google Scholar. For a citation to the debate as a whole, see note 43 supra.

240 Justice Kennedy, though he joined in the Chief Justice’s opinion, wrote separately as well, and disagreed with all of the argument based on the text or drafting history of the Fourth Amendment. “The force of the Constitution,” he wrote, quoting Story’s Commentaries on the Constitution, “is not confined because it was brought into being by certain persons who gave their immediate assent to its terms.” 110 S. Ct. at 1067. Justice Kennedy agreed with the Chief Justice, however, “that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad.” Id.

241 Id. at 1061.

242 Quoting Perez v. Brownell, 356 U.S. 44, 57 (1958).

243 110 S. Ct. at 1066.

244 The majority opinion in Verdugo expressly distinguished the scope of the two amendments; Chief Justice Rehnquist wrote, “we think it significant to note that it [the Fourth Amendment] operates in a different manner than the Fifth Amendment, which is not at issue in this case.” Id. at 1060.

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