¹ 60 U.S.L.W. 4523 (U.S.June 15, 1992) (No. 91-712).

² The defendant was abducted by Mexicans and brought to Texas, apparently at the request of U.S. government agents. The Drug Enforcement Administration paid $20,000 plus expenses to some of those involved in the abduction of Alvarez Machain and others responsible for the torture and death of DEA agents Camarena and Zavala-Avelar. See id. at 4524.

³ Extradition Treaty, May 4, 1978, U.S.-Mex., 31 UST 5059. It is unlikely that Alvarez Machain would have been extradited to the United States. Under the terms of the Treaty (Art. 9), Mexico is not required to extradite its nationals and has apparently never acceded to a U.S. request for extradition of a Mexican national. See Brief for the United States to the Supreme Court at note 17, United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991) (No. 91-712).

⁴ See, e.g., N.Y. Times, June 16, 1992, at Al (High Court Backs Seizing Foreigners for Trial in U.S.); N.Y. Times, June 17, 1992, at A8 (referring to the “Supreme Court ruling … upholding the United States's [sic] right to kidnap a criminal suspect”); N.Y. Times, June 18, 1992, at A26 (editorial) (“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.”); N.Y. Times, July 2, 1992, at A5 (referring to “a Supreme Court ruling … that affirmed the right of United States agents to abduct criminal suspects abroad”); Wash. Post, June 18, 1992, at A33; L.A. Times, June 18, 1992, at A32 (both speak of “U.S. Supreme Court ruling allowing U.S. abduction abroad of criminal suspects,” wording taken directly from Reuters, June, 17, 1992, AM cycle, available in LEXIS, Nexis Library, Reuters File); Newsweek, June 29, 1992, at 68 (“The Supreme Court OK's a controversial kidnapping”) (headline); Time, June 29, 1992, at 30 (“decision to uphold an international kidnapping”).

⁵ 60 U.S.L.W. at 4527 (emphasis added). Not all abductions are violations of international law. Abduction of terrorists may be justified self-defense under Article 51 of the United Nations Charter and may thus not be in violation of international law. That terrorist acts are not simply crimes committed by individuals against individuals, but are acts planned by states and aimed at other states, is clear from recently opened KGB files. A KGB memorandum states that in 1968 the Soviet Union agreed with the Popular Front for the Liberation of Palestine (PFLP) on a “long term program of sabotage and terrorism,” including “actions against U.S. and Israeli personnel in third countries aimed at obtaining reliable information about the plans and intentions of the U.S.A. and Israel.” Facts on File, New Republic, June 29, 1992, at 16–17.

Professor Glennon, though urging Congress to enact legislation barring forcible abductions abroad, apparently agrees that there may be circumstances in which abductions of terrorists may be justified as a matter of policy and legal under Article 51 of the Charter. He states that it would be “extremely difficult … to draft statutory language delineating these circumstances with sufficient precision to avoid the possibility of abuse,” “[b]ut there is no harm in trying.” Glennon, State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain, infra p. 746, 755.

⁶ 946 F.2d 1466 (9th Cir. 1991).

⁷ The court of appeals held (1) that the abduction violated international law, and (2) that since the Treaty is the supreme law of the land, its violation vitiated the court's jurisdiction. The Supreme Court did not reach the latter point, since it disagreed with the court of appeals that the abduction violated the Treaty. However, even if the abduction had violated the Treaty, it does not necessarily follow that the defendant could not be tried in the United States. First, the remedy for violation of the Treaty does not have to be divestiture of jurisdiction. It can be an apology, monetary damages or anything else acceptable to Mexico. See F. A. Mann, The Consequences of an International Wrong in International and Municipal Law, 1976–77 Brit. Y.B. Int'l L. 1, 2–5. See also SC Res. 138, SC Res. & Dec, 15th Sess. at 4, UN Doc. S/INF/15/Rev.1 (1960) (requesting that the Government of Israel “make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law” for its violation of Argentina's sovereignty in the abduction of Eichmann). Second, as discussed below, under the U.S. Constitution, the President has broad powers in foreign affairs, including the authority to breach a treaty. See infra text at notes 36–52.

⁸ Ker v. Illinois, 119 U.S. 430 (1886); Frisbie v. Collins, 342 U.S. 519, reh'g denied, 343 U.S. 937 (1952).

⁹ 60 U.S.L.W. at 4525.

¹⁰ F. A. Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity 407, 412 (Yoram Dinstein ed. 1989).

¹¹ Id. at 414.

¹² Ian Brownlie, Principles of Public International Law 317 (4th ed. 1990) (emphasis added).

¹³ Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil des Cours 9, 305 (1989 IV).

¹⁴ Re Hartnett & Hudson & the Queen, 14 Can. Crim. Cas. 2d 169 (Ont. High Ct. J. 1973); In re Walton, 10 Can. Crim. Cas. 269 (Ont. Ct. App. 1905); Re Argoud, 45 ILR 90, 95–97 (Cass. 1964); Ex parte Driver, 2 All E.R. 681, 695–97 (Q.B. 1985). Although a lower court briefly departed from the rule in Driver, see Ex parte Mackeson, 75 Crim. App. 24, 33 (1981), the high court subsequently reaffirmed the rule, see R. v. Governor of Pentonville Prison, ex parte Chinoy, 1 All E.R. 317, 330 (Q.B. 1990). Attorney General v. Eichmann, 36 ILR 277, 305 (Sup. Ct. Isr. 1962); see also Savarkar Case (Fr. v. Gr. Brit.), Hague Ct. Rep. (Scott) 276 (Perm. Ct. Arb. 1911); Afouneh v. Attorney General, 10 Ann. Dig. 327 (Palestine Sup. Ct. 1942). For a discussion of these cases and cases in other jurisdictions, see Mann, supra note 10, at 412–14.

¹⁵ The Harvard Research in International Law proposed that the following article be adopted as part of an international convention on extradition:

Article 16. Apprehension in Violation of International Law

In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority 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.

Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL 623 (Supp. 1935). The comment stated that it was “in part a restatement of existing practice and in part a reconciliation of conflict between contemporary doctrines.” Id.

¹⁶ While New Zealand has rejected the rule, see Ex parte Hartley, 2 N.Z.L.R. 199, 216 (Ct. App. 1977), and courts in some states have at various times sought to limit it, see, e.g., United States v. Toscanino, 500 F.2d 267 (2d Cir.), reh'g denied, 501 F.2d 1380 (1974); Ex parte Mackeson, 75 Crim. App. 24 (1981), those decisions were later distinguished. See supra note 14. The general practice by states over a period of time necessary to establish a new rule of customary law, see J. L. Brierly, The Law of Nations 60 (6th ed. 1955), is clearly lacking.

¹⁷ See, e.g., Henkin, supra note 13, at 310–11; Mann, supra note 10, at 414; Geoff Gilbert, Aspects of Extradition Law 194 (1991) (“On present authority a fugitive who is brought before criminal courts in breach of international law may still be tried. The fact that there is a valid extradi tion treaty that would have been applicable … is irrelevant. This approach seems harmful to both international public order and human rights.”).

¹⁸ Henkin, supra note 13, at 310.

¹⁹ Weeks v. United States, 232 U.S. 383 (1914).

²⁰ See Wolf v. Colorado, 338 U.S. 25 (1949).

²¹ Mapp v. Ohio, 367 U.S. 643 (1961).

²² 119 U.S. 436 (1886).

²³ 342 U.S. 519 (1952).

²⁴ United States v. Crews, 445 U.S. 463 (1979).

²⁵ Id. at 474.

²⁶ Payton v. New York, 445 U.S. 573 (1980).

²⁷ New York v. Harris, 495 U.S. 14 (1990).

²⁸ Id. at 18. See also Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (“illegal arrest or detention does not void a subsequent conviction”).

²⁹ While the Supreme Court found that the seizure did not breach the U.S.-Mexican Extradition Treaty, a contrary finding would not have required release of the defendant. Treaties have the same force as statutes and both are subordinate to the Constitution. If arrest in violation of the Constitu tion does not require release of the defendant or vitiate jurisdiction of the court to try him, a fortiori violation of a treaty would not do so.

³⁰ See supra text at note 5.

³¹ 60 U.S.L.W. at 4525. Even the Opinion of Legal Counsel to the Department of Justice under the Carter administration (which advised against authorizing abduction abroad absent tacit consent by the foreign state because in its view “asylum state consent” was “pivotal to the success of the operation, both as a matter of litigation and public perception”) concluded that abduction was not a violation of the Extradition Treaty. It stated: “By its terms it does not constitute an agreement that extradition will be the exclusive means of obtaining custody of a fugitive. Nor does it purport to limit the criminal jurisdiction of either sovereign.” Extraterritorial Apprehension by the Federal Bureau of Investiga tion, 4B Op. Off. Legal Counsel 543, 547 n.13 (1980). It also took the position that even if interna tional law was violated, the court was not required to divest itself of jurisdiction, stating:

In sum, we are of the opinion that in the absence of an international law violation, a federal district court will not ordinarily divest itself of jurisdiction in a criminal case where the defendant's presence has been secured by forcible abduction from the territorial limits of a foreign asylum state. Nor should it do so where there is an international law violation.

Id. at 547 (emphasis added).

³² See supra text at notes 10–16.

³³ See 60 U.S.L.W. at 4526 n.11.

³⁴ 60 U.S.L.W. at 4528 (Stevens, J., dissenting).

³⁵ 60 U.S.L.W. at 4527 (emphasis added). It is arguable that once the Court decided that the abduction did not violate the Treaty, it was simply applying the rule to the case before it when it said that “as a matter outside of the Treaty,” the question is for the Executive. The difficulty with that interpretation of the statement is that the majority went to considerable lengths to establish that the abduction did not violate the Treaty. It would not have been necessary to do so if the Court believed that the decision was for the Executive regardless of whether the abduction violated the Treaty. If the Court had wanted to make clear its position that the abduction did not violate the Treaty, it could have included a statement in the opinion that, while the abduction did not violate the Treaty, the question whether to breach a treaty was in any event to be decided by the Executive, so indicating its disagreement with the court of appeals and Justice Stevens that violation of the Treaty required divestiture of jurisdiction. At the very least, the Court should not have added the limiting phrase “as a matter outside of the Treaty” in its statement.

³⁶ United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

³⁷ Id. at 319–20.

³⁸ United States v. Belmont, 301 U.S. 324 (1937).

³⁹ United States v. Pink, 315 U.S. 203 (1942).

⁴⁰ See Litvinov Agreement, Exchange of Communications and Notes, 28 AJIL 1 (Supp. 1934).

⁴¹ 318 U.S. 578 (1943).

⁴² 324 U.S. 30 (1945).

⁴³ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

⁴⁴ In Sabbatino, the Court held that the U.S. courts had to enforce a Cuban decree nationalizing the property of U.S. citizens even though the decree was clearly confiscatory and retaliatory. See Banco Nacional de Cuba v. Sabbatino, 193 F.Supp. 375, 384–85 (S.D.N.Y. 1961); Richard A. Falk, Towards a Theory of the Participation of Domestic Courts in the International Legal Order: A Critique of Banco Nacional de Cuba v. Sabbatino, 26 Rutgers L. Rev. 1, 38 (1961). Since an executive decision to try the defendant in the United States even though he was illegally abducted is an act of state by the United States, a decision barring the trial on the ground that it would violate international law would lead to the paradoxical result that U.S. courts must enforce foreign acts of state even if violative of international law but may not enforce a U.S. act of state if violative of international law.

⁴⁵ See The Chinese Exclusion Case, 130 U.S. 581 (1889). The Court there said: “The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts.” Summarizing earlier cases, the Court continued:

[W]hether the views and acts of a foreign sovereign, manifested through his representative, had given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty or to act in direct contravention of such promise, were not judicial questions; that the power to determine them has not been confided to the judiciary, which has no suitable means to execute it, but to the executive and legislative departments of the government; and that it belongs to diplomacy and legislation, and not to the administration of existing laws.

Id. at 602 (emphasis added).

Some commentators take the position that the President may not violate customary international law. See, e.g., Michael J. Glennon, Can the President Do No Wrong?, 80 AJIL 923 (1986); Jordan J. Paust, The President Is Bound by International Law, 81 AJIL 377 (1987). Glennon argues that the President may not constitutionally violate customary international law because the Constitution gives Congress the power to “define and punish offenses against the law of nations.” U.S. Const. Art. I, §8, cl. 10. This clause authorizes Congress to penalize under U.S. law acts that are offenses under international law. It is addressed to criminal acts by individuals, not to breaches of customary international law by governments and has no bearing on whether the United States may constitutionally violate international law (which Glennon agrees it may) or on who may decide whether it should be violated in a particular instance. That the purpose of the clause was to give Congress the power to punish criminal conduct is clear from its language and legislative history. The term “offenses” generally refers to criminal conduct. See Model Penal Code §1.02(1)(a) (1985). Not all violations of customary international law are “offenses” under the law of nations, any more than all violations of municipal law are “offenses” under U.S. law. Further, the clause vests Congress with authority to define and “punish.” Only criminal acts are punished. Indeed, the initial draft of the clause only authorized Congress to “punish” offenses against the law of nations; “define” was added at the insistence of Gouvernor Morris, who argued that the “word define is proper when applied to offenses in this case; the law of [nations] being often too vague and deficient to be a rule.” Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321, text at 334 n.85, 333–34 (1985).

⁴⁶ Henkin, supra note 13, at 97 (emphasis added).

⁴⁷ Louis Henkin, Foreign Affairs and the Constitution 171 (1972). The Court's decision in United States v. Rauscher, 119 U.S. 407 (1886), is not to the contrary. Rauscher involved a question of treaty interpretation. In that case the Executive was proceeding under the treaty; there was no indication that he intended to violate U.S. obligations under international law. In the instant case, the abduction of the defendant violated general principles of international law. Thus, it was clear that the Executive wanted to bring the defendant to trial in the United States, notwithstanding that doing so was in violation of international law. Questions of treaty interpretation are for the courts, but decisions on whether to terminate a treaty or breach a treaty are for the President and Congress. See Baker v. Carr, 369 U.S. 186, 210 (1962); The Chinese Exclusion Case, 130 U.S. 581, 602 (1889).

⁴⁸ See, e.g., The Paquete Habana, 175 U.S. 677, 700 (1900) (“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.”). One argument against the act of state doctrine is that it requires the United States to enforce acts that violate international law. See Malvina Halberstam, Sabbatino Resurrected: The Act of State Doctrine in the Revised Restatement of U.S. Foreign Relations Law, 79 AJIL 68, 85–87 (1985). See also The Foreign Assistance Act of 1965: Hearings Before the House Comm. on Foreign Affairs, 89th Cong., 1st Sess. 1036–37 (1965) (statement of Myres McDougal).

⁴⁹ See testimony before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, by Abraham Sofaer, then Legal Adviser, Department of State, in FBI Authority to Seize Suspects Abroad: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 26, 38–41 (1989), reprinted in 84 AJIL 725, 727–28 (1990).

⁵⁰ Cf Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853 (1987).

⁵¹ Congress can, of course, enact legislation limiting the Executive's authority and is already con sidering doing that. The House Judiciary Subcommittee held hearings on the case one week after it was decided by the Supreme Court, see House Judiciary Subcommittee on Civil and Constitutional Rights, Federal News Service, June 22, 1992 (available in LEXIS, LEGIS library, FedNews file), and a bill to prohibit trial in the United States of persons unlawfully seized from a state with which the United States has an extradition treaty, unless that state consents to the trial, was introduced on July 7, 1992. International Kidnapping and Extradition Treaty Enforcement Act, H.R. 5565, 102d Cong., 2d Sess. (1992).

⁵² It is arguable that this is different from other breaches of international law since it requires judicial action for its implementation and that the Supreme Court can, under its supervisory powers over the federal courts, order them not to participate in the breach of international law. Cf. McNabb v. United States, 318 U.S. 332 (1943); United States v. Lira, 515 F.2d 68, 72–73 (1975) (Oakes, J., concurring). It is not clear that the trial of someone who has been illegally seized is itself a violation of international law. Mann takes the position that it is. See Mann, supra note 10, at 411–12, 417, 419. Henkin takes the position that it is not. See supra text at note 18. Under the latter view, the Court would not be participating in an illegal act. Further, the Court could only bar the trial. It could not order the Executive to repatriate the accused to the country from which he was seized, as the decision whether to do that or not is clearly for the Executive to make in the conduct of foreign affairs. Finally, it should be noted that the Supreme Court has not ordered the courts to decline jurisdiction to enforce foreign acts in violation of international law that could not be implemented without judicial action. On the contrary, in Sabbatino the Court ordered the lower courts to enforce a foreign act that violated international law. See supra note 44.

⁵³ See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195; International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1984), reprinted in 23 ILM 1027 (1984), as modified, 24 ILM 535 (1985); Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180 (Dec. 18, 1979), reprinted in 19 ILM 33 (1980).

⁵⁴ 500 F.2d 267 (2d Cir. 1974).

⁵⁵ 75 Crim. App. 24 (1981).

⁵⁶ Mann, supra note 10, at 419.

⁵⁷ Id.

⁵⁸ Id. at 414. He said:

This was so extreme, so unique, so horrendous a case that a court which had jurisdiction because the man stood before it could not possibly be expected not to exercise it or even to ask whether it should be exercised. The singular character of the crime was such as to render the exercise of jurisdiction a duty, but at the same time should not in any sense be allowed to supply the standard applicable in other, different cases.

⁵⁹ The international community may be moving in that direction; cf. SC Res. 731 (Jan. 21, 1992) and SC Res. 748 (Mar. 31, 1992) (requiring Libya to extradite those charged with the bombing of Pan Am Flight 103, which resulted in the explosion of the plane over Lockerbie, Scotland, and the death of 270 persons, and imposing sanctions on Libya for its failure to extradite).

⁶⁰ Even critics of the U.S. action and the Court's decision in Alvarez-Machain would not necessarily prohibit such action under all circumstances. Representative Patricia Schroeder, though clearly disap proving of the Alvarez-Machain decision, stated:

[I]f the Mexican government had been contacted and absolutely refused to do anything about this case—that's one thing. And that would be one area where I might see it going to the National Security Council. In other words, if you have a government who can no longer control its borders, that's dissolving or so forth as we're seeing in certain parts of the world right now where it is very iffy if you had this kind of an issue, that's a different case.

House Judiciary Subcommittee on Civil and Constitutional Rights, Federal News Service, June 22, 1992 (available in LEXIS, LEGIS library, FedNews file, unpaginated). See also testimony of Professor Glennon:

Now, I want to suggest to you that each of those last two remedies, a flat-out ban on presidential seizures abroad and overturning the Ker-Frisbie rule, would raise a tough question, and that is whether you want to include an exception in either one of those remedies for seizures carried out in the case of Article 51. I refer again back to the Pan Am 103 hypothetical.

Id. (un paginated). Glennon argued against an exception, not on the ground that it was never justified, but on the ground that it was difficult to articulate and might be abused.