Kidnapping Foreign Citizens

THE rule of law took a giant leap backward last week when the Supreme Court decided that the government is free to kidnap foreign citizens from the territory of their nations despite the protest of those nations. The case involved the abduction of a Mexican national, Humberto Alvarez-Machain, from Mexico at the direction of United States drug-enforcement agents. Dr. Alvarez was charged in the US with assisting in the torture and murder of a US drug-enforcement agent in Mexico.

The high court's judgment is certain to wreak havoc with previously settled rules against breaching the territory of a sovereign nation. By abdicating to the executive branch its authority to apply international law, the court also vests the president with unforeseen new powers.

The court's focus - limited to a strict interpretation of the extradition treaty between the US and Mexico - has left a pall over all such treaties that attempt to regulate the way in which one nation can request and obtain another nation's citizens for prosecution. The court ruled that, because the extradition treaty did not explicitly prohibit obtaining the national in some way other than extradition - in this case, forcible abduction - the treaty, and Mexico's objections, did not apply.

The ruling mocks a venerable interpretation of contracts between individuals or nations. If Jane Doe agrees to sell eggs to John Smith, Smith's sneaking in by night to Doe's hatchery to steal some eggs would not be made legal simply because the agreement did not prohibit it.

Just as an underlying law prohibits egg theft, so a rule of general international law prohibits nations, including the US, from forcibly abducting nationals from their countries over the host country's objection. That principle has been reiterated time and again by the United Nations. In 1960, the Security Council reviewed the abduction of Nazi war criminal Adolf Eichmann from Argentina by Israeli government agents, and declared that such acts "affect the sovereignty of a Member State and therefore cause

international friction, [and] may, if repeated, endanger international peace and security."

Since 1900, the Supreme Court has recognized that international law is a part of the law of the US and that US courts are obligated to decide disputes involving international law. In that case, known as "The Paquete Habana," the court held that the seizure of coastal fishing vessels during wartime violates international law. The ruling required US courts to apply international law if the dispute could not be resolved by reference to a treaty, controlling executive or legislative act, or judicial decision .

Based on that ruling, the high court should have applied the rules of customary international law in the Alvarez case, since no other basis for resolution could be found. Under Chief Justice Rehnquist's reasoning, no treaty controlled the dispute. In addition, no executive authority at a sufficiently senior level and no legislative act authorized the abduction. Nor had any previous court legitimized the prosecution in the US of a person abducted abroad by US government agents.

WITHOUT so much as acknowledging it, the Supreme Court ignored its nearly century-old rule and shifted to the executive branch the authority to decide disputes involving general international law. In his opinion Rehnquist stated: "Respondent's abduction ... may be in violation of general international law principles. Mexico has protested the abduction ... 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."

Had the Constitution's drafters entrusted a political branch of government with such authority, we would long ago have confronted the dangerous outcome avoided until now. The courts remain the sole neutral arbiters obligated to apply the law - a law which includes general international principles.

As a result of the court's decision, the world is a more dangerous place. There is now no legal bar, for example, to an abduction by Saddam Hussein's agents of a US citizen from the US to stand trial in Iraq or - as the dissenting opinion of Justice Stevens foresaw - to be tortured or executed. Under the Alvarez decision, if an extradition treaty does not expressly prohibit such conduct, the fact that the act violates general international law matters not.

The people of the US, and the world, can hope that Congress will see fit to override by legislation the Supreme Court's new decision and restore the rule of law recognized by civilized nations.

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