"To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."(1)
Early in 1985, special agent Enrique Camarena-Salazar of the United States Drug Enforcement Agency (DEA), and pilot Alfredo Zavala-Avelar of Mexico, were kidnapped and murdered by suspected Mexican drug smugglers.(2) One of the suspects was a Mexican national named Humberto Alvarez-Machain, a doctor.(3) He was believed to have helped the smugglers torture and interrogate Agent Camarena by administering drugs to prolong his life.(4) Eventually, the doctor finished his work, and Camarena was executed. His body was recovered approximately one month later on a ranch in Michoacan, Mexico. (5)
On April 2, 1990, the DEA arranged for the forced return of Dr. Alvarez-Machain,in order to bring changes and prosecute for the kidnapping and murder.(6) He was seized from his Guadalajara office and flown to the United States, where prosecution began.(7) After a legal battle over the terms of the United States-Mexican Extradition Treaty,(8) the United States assumed jurisdiction.(9) Nevertheless, Dr. Alvarez-Machain was acquitted, due to a lack of evidence.(10)
The United States Supreme Court decided a series of cases beginning in 1886(11) that effectively precludes extension of the Fourth Amendment(12) to alien fugitives abroad who are wanted in the United States. Although this practice may violate international law, the United States justifies it on two grounds. First, by its decision not to apply the Fourth Amendment in United States v. Verdugo-Urquidez,(13) and upholding the Ker doctrine in Alvarez-Machain,(14) the Supreme Court has effectively declared that constitutional protection does not apply to aliens outside the United States' borders, sought for prosecution of offenses in the United States.(15) Second, the United States government considers it necessary to abrogate its extradition treaty with Mexico in order to continue a rhetorical war against drugs, which was spawned during the Reagan Presidency.(16) Proponents reason that the only way to stop and repair the damage done by illegal drugs is to resort to drastic emergency measures, not unlike those used in times of war.(17) Undoubtedly, substance abuse has a profoundly negative effect on many aspects of United States society. However, other commentators believe that the government should treat the demand for illegal drugs as a symptom of deeper and more widespread domestic problems, focusing more resources on treatment of addiction, and less on punishing suppliers abroad.(18)
This Note will focus on the United States government's refusal to extend constitutional protection
to fugitive foreign nationals at large beyond our borders who are accused of drug related
offenses.(19) It questions whether the practice contravenes the Constitution, as well as established
principles of international law and comity.(20)
In section IV, this Note discusses some recent United States cases where courts declared due process standards inapplicable when apprehending foreign fugitives abroad. These rulings provided an additional basis for the Supreme Court to justify decisions like Verdugo-Urquidez(23) and Alvarez-Machain.(24) In section V, it then argues that international law provides the United States with a policy template to utilize in a legitimate state emergency.(25) Several instruments enumerate international due process standards. If derogation from those standards is allowed, certain exigent circumstances, for example, the political violence faced by countries like Israel and the United Kingdom, ought to exist.
This Note concludes by arguing for reversal of the Alvarez-Machain trend. The United States should be guided in such instances by principles of international law, including treaties to which it is a State party, which define and limit the scope of government power during legitimate state emergencies. Except in truly exigent circumstances, international law condemns the type of activity declared acceptable by the Supreme Court in recent years. The decision to derogate from treaties to which the United States is a party should not be left to the Drug Enforcement Agency, as was the case in Alvarez-Machain.(26) If such exigencies exist in the United States, the State Department should promulgate and adhere to a policy which comports with relevant international law.
A. The United Kingdom and Her Diplock Courts
In response to an increasing number of terrorist attacks in Northern Ireland, the United Kingdom called for a solution to what it considers a national emergency. In 1972, the government published the Diplock Report.(27) In response to this report, the United Kingdom then passed the Emergency Provisions Act (EPA), which implemented the recommendations of Lord Diplock.(28)
This was not the first time the United Kingdom passed such an act. In 1923, a year after it divided Ireland between the Loyalist North and the Free South, the government passed the Special Powers Act to assure sufficient power over the new underground organization known as the Irish Republican Army (IRA).(29) Since the division, tension has continued in the North between the Loyalists and the Republicans, who would abolish the division and make Ireland one sovereign.(30) The Special Powers Act and the EPA grant British security forces broad power to arrest and detain criminal suspects.(31) Moreover, once in custody, authorities may use any means short of torture or degrading treatment to elicit information from those suspects.(32)
Those accused of terrorist acts under the EPA are tried in special "Diplock Courts."(33) Diplock Courts do not require a jury, and the burden of proof shifts to the defendant in all bail proceedings and in trials where the charge is a possessory offense.(34) The lack of a jury gave rise to many disturbing features in Diplock proceedings. In particular, whether confessions are obtained in an admissible manner is now decided by judges. (35)
Two major arguments have been made against the EPA. The first is that Diplock justice violates basic human rights.(36) An example is the constant presence of military forces in Northern Ireland.(37) The tense atmosphere created by the military presence has led to violence, injury and death to citizens.(38)
The second argument is that Diplock justice undermines respect for the law, and in fact worsens the situation it was designed to remedy.(39) The injustices suffered by EPA detainees causes disdain for the judicial system and the government, and leads to increased membership in terrorist organizations and a greater number of acts committed that the EPA was designed to alleviate. (40)
The Diplock system represents a significant move away from traditional notions of due process in the United Kingdom.(41) For example, in addition to the previously noted measures, the EPA also allows the use of force in obtaining confessions and extended detention of suspects without the opportunity to consult with an attorney.(42) In spite of the extreme nature of these methods, the United Kingdom has stated its intention to follow the minimum standards set by of the European Convention for the Protection of Human Rights and Fundamental Freedoms.(43)
B. The Ticking Bomb Scenario: Israel's Policy Of Preventative Torture(44)
Like the United Kingdom, Israel has for years been involved in a bloody conflict between the government and Palestinian factions who claim the right to certain territories occupied by Israel. Like Northern Ireland and the United Kingdom, underlying religious differences provide an additional basis for the conflict.
In response to the extreme violence occurring in Israel, the government has imposed severe emergency measures to quell the conflict and prevent acts of terrorism. (45) These include deportation of suspected terrorists, preventative detention, curfews, and beatings to gain information about terrorist targets and plans.(46) The government has recently adopted the "ticking bomb" justification for beating prisoners suspected of knowledge or involvement with imminent terrorist activities in Israel. (47)
These practices are decried by human rights advocates as a violation of international law, but Israeli officials and frightened citizens believe it is necessary to restore order.(48) Israel notes that while the prior existing laws comported with international law, they were inadequate to address the current emergency situation in Israel. (49)
Due process applies to United States citizens accused of crimes abroad.(50) Non-resident aliens wanted for crimes against the United States interests are often subject to extradition via a bilateral treaty agreement, such as the United States-Mexico Treaty.(51) However, non-resident aliens are not afforded protection from the Fourth Amendment. (52) This section analyzes the Fourth Amendment as it applies to United States citizens beyond its borders, as well as non-resident fugitives sought by the United States government.
In spite of the Supreme Court's refusal to extend the Fourth Amendment to aliens abroad, full constitutional powers are used to prosecute those non-resident aliens once they are brought within the United States borders.(53) An additional policy rational for refusal to extend the Fourth Amendment to non-resident alien fugitives is the fight against drugs.(54) However, compared to violent situations faced by other countries, such as Israel and the United Kingdom, it remains unclear as to whether this fight against drugs is a sufficient reason to violate international law.(55)
A. The Constitution Applies to United States Citizens Abroad
Certain provisions of the United States Constitution's Bill of Rights apply to citizens located beyond her borders.(56) In Reid v. Covert, the Supreme Court declared: "When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."(57) In Reid, defendant Covert killed her husband, a member of the armed forces stationed in the United Kingdom.(58) The United States argued that Mrs. Covert should be subject to a United States military court martial in the United Kingdom, which would not afford her a jury trial.(59) The Court rejected this argument, holding that as a United States citizen being tried by United States authorities, Mrs. Covert was entitled to a jury trial, even where the crime occurred in the United Kingdom.(60)
B. The Constitution Does Not Protect Aliens Located Abroad
1. The Alvarez-Machain Precedent
In 1992, the Supreme Court effectively declared that the United States government, in spite of limits imposed by international law, an established extradition treaty, and the Fourth Amendment, could abduct a Mexican citizen from his own country for trial in the United States.(61) In Alvarez-Machain, the United States did this without seeking or receiving permission from the fugitive's state of citizenship. (62) It sought to prosecute the defendant, a medical doctor, for his alleged role in the torture and execution of a United States Drug Enforcement Agent.(63) Apparently the defendant's role was to use his medical expertise to keep the victim alive while others tortured and interrogated him.(64) The Supreme Court overturned two lower court orders to repatriate the defendant.(65) The lower courts held that the United States violated the extradition treaty with Mexico by abducting the defendant instead of arranging for extradition according to the treaty's terms.(66) The Court reversed, holding that the treaty did not expressly bar the defendant's abduction,(67) and that under the Ker doctrine, the illegality of obtaining the defendant's presence before the court would not preclude prosecution. (68)
The Alvarez-Machain Court noted three distinguishing, and by its reasoning, non-determinative facts between that case and Ker. First, like defendant Alvarez-Machain, defendant Ker was kidnaped by an agent of the government sent to assure his extradition pursuant to a treaty.(69) The agent in Ker was instructed to follow the extradition treaty.(70) However, he ignored the treaty without the permission of United States officials and forced Ker to return.(71) After trying through informal negotiations and failing to obtain the assistance of the Mexican government, the DEA sent agents into Guadalajara to kidnap Alvarez-Machain and bring him to the United States.(72) According to the Court, although the treaty does not state that officials of one country can forcibly abduct a national of the other and bring him back for trial, neither does it expressly prohibit this.(73) Thus, the United States did not contravene the treaty, and the Court found it was free to apply the Ker doctrine.(74) In neither case was the Court concerned with how the defendant arrived at the court once he was there to answer the charges against him. The second crucial fact the Court disregarded was that defendant Ker, in contrast to Alvarez-Machain, was not a national of the country from where he was abducted.(75) Unlike Mexico, Peru did not protest the abduction of Ker or the violation of the treaty.(76) The third and arguably most important distinction lies in the internal political climates of the two countries at the relevant times. There is no evidence to suggest that the United States' agents could not have attempted to formally extradite the defendant.(77) Even if one accepts as true the government's assertion in Alvarez-Machain, that the conspiracy to kidnap and murder Camarena was traceable to high ranking Mexican officials, the United States could have made a good faith attempt to follow the provisions of the treaty.(78) By contrast, commentators note that Peru was in the aftermath of a revolution when the United States agent was sent to extradite defendant Ker.(79) There is evidence that the United States agent was unable to serve the warrant on an appropriate Peruvian official.(80) Only then did the agent force Ker to return to the United States for trial.(81) The inability to perform the treaty obviated the need to follow it.
Alvarez-Machain further argued that the DEA violated international law, because its agents did not follow the procedure outlined in article 9 of the extradition treaty.(82) Furthermore, international law prohibits the extraterritorial kidnapping of criminal fugitives.(83) Proponents of an aggressive effort against drugs would argue that even if principals of international law are derogated from, the fact that the United States is fighting against drugs and drug traffickers nevertheless allows derogation from certain due process considerations.(84) However, the drug problem in America, though serious, may not in fact rise to the level of the situations faced by Israel or the United Kingdom, where wartime emergency measures are also used.(85)
2. United States v. Matta-Ballesteros(86) Affirms Alvarez-Machain
Another suspect in the 1985 murder of DEA Agent Camarena was brought to trial in the United States by methods similar to those described in Alvarez-Machain.(87) In United States v. Matta-Ballesteros, the defendant Juan Ramon Matta-Ballesteros was abducted in Honduras (his homeland) by United States agents, with the help of Honduran Special Troops.(88) After an arrest in Columbia in April 1985, the United States unsuccessfully tried to extradite Matta-Ballesteros on unrelated criminal charges in New York.(89) Neither did they "follow through on extradition efforts with regard to a previously dismissed, but newly revived fourteen-year-old charge for escape from federal authorities."(90)
Some three years after these failures, in a pre-dawn operation, United States agents, with the help of Honduran forces known as Cobras, snatched Matta-Ballesteros from his home, "bound his hands, put a black hood over his head, thrust him on the floor of a car operated by a United States Marshal, and drove him to a United States Air Force Base in Honduras."(91) From there, Matta-Ballesteros was brought to the United States.(92) The United States disputed the defendant's assertions about his treatment, but not that he was abducted from his home.(93) The Matta-Ballesteros court rejected the defendant's assertions that the United States violated its extradition treaty with Honduras, and that "the shocking nature of [the defendant's] abduction and mistreatment requires dismissal."(94)
In its decision, the court noted that United States v. Toscanino,(95) a Second Circuit case, was overruled by Alvarez-Machain.(96) In Toscanino, the court held that due process would not permit United States agents to pistol whip, kidnap, torture and administer drugs to an Italian suspect apprehended in Uruguay, before forcing him to return to the United States for trial.(97) The Toscanino court declared that if the defendant could prove his allegations against the government, his indictment might be dismissed.(98) It based this holding on the notion that due process was not afforded a defendant if his presence before the court was obtained by "deliberate and unnecessary lawlessness."(99) Because of this expanded notion of due process, the Toscanino court believed that the Ker-Frisbie doctrine had become a dead letter.(100) However, in repudiating Toscanino, the Matta-Ballesteros court noted that several cases were decided later which served to constrict the notion of due process, especially as it pertains to Fourth Amendment seizures of persons, and breath life into the Ker-Frisbie doctrine.(101) The Matta-Ballesteros court stated that "[i]n the shadow cast by Alvarez-Machain, attempts to expand due process rights into the realm of foreign abductions, as the Second Circuit did in [Toscanino], have been cut short."(102)
Regarding the applicable treaties,(103) the court determined that their language was largely similar to the United States-Mexico treaty, and thus, Alvarez-Machain controlled.(104) The defendant's second contention concerns torture of criminal suspects.(105) In Matta-Ballesteros, the defendant alleged his treatment by the United States agents amounted to a violation of international law under the Universal Declaration of Human Rights.(106) The court determined its supervisory powers may only be used "if the defendant could demonstrate governmental misconduct 'of the most shocking and outrageous kind.'"(107) The court further stated that the defendant's "alleged treatment, even if taken as true, does not meet this rigorous standard, and the acts alleged were not nearly as egregious as those committed in Toscanino."(108)
The Matta-Ballesteros concurring opinion distinguished that case from Alvarez-Machain and other cases that raised questions about due process for alien fugitives abroad.(109) Judge Noonan believed that no precedent stood to prevent the court from using its supervisory powers on the defendant's behalf, based on the unique facts of the case.(110) However, since the defendant's case had already been fully and fairly litigated in a collateral action, the defendant could not again raise the issue in the Ninth Circuit.(111) According to Judge Noonan, the defendant had his opportunity to bring this argument before the Eleventh Circuit, and since he did not, he waived his right.(112)
Judge Noonan also noted that the United States, at the time of the Eleventh Circuit case, was not yet a party to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.(113) Since the United States has ratified the treaty, and it is currently in force, its existence, but for the defendant's waiver in the Eleventh Circuit, would have been another basis for the Ninth Circuit to hear the case.(114)
A. Customary International Law(115) Applies To United States Law
Before Reid v. Covert was decided, the Court had already addressed another issue that set the standard for comparing United States law to international law. In The Paquete Habana, the Court declared that "international law is part of our law,"(116) and thus United States courts are bound to consider and apply it where it does not conflict with domestic law:
When there is no treaty, and 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 work 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.(117)
In The Paquete Habana, the disputed rule was the customary international law norm that peaceful fishing vessels caught in the area of the fighting, are exempt from capture as prizes of war.(118) The Court considered this rule and decided it should be applied to disallow the Paquete Habana's seizure, pursuant to an order of the Secretary of the Navy, just prior to the United States' war against Spain.(119)
The Court noted that there was no mention in the Secretary's order about including innocent, unarmed fishing vessels, and the President intended the war to be fought under the principles of international law.(120) Therefore, international and United States law required the return of the Paquete Habana.
A recent case where the United States again applied customary international law to a domestic matter was Filartiga v. Pena-Irala. (121) The Filartiga court extended jurisdiction and held that the foreign plaintiff was entitled to damages for the murder of his son by a Paraguayan official accused of torturing and murdering his son in that country.(122) In support of the holding, the Court noted that the constitutional basis is the law of nations and that the act in question "violates established norms of the international law of human rights, and hence the law of nations."(123)
B. Garcia-Mir v. Meese(124) Marked a Shift Away From Principles of International Law
The above cases clearly demonstrate a willingness to apply international law in conjunction with applicable United States law. However in recent years, judicial reasoning appears to have changed dramatically. For example in an Eleventh Circuit case, Garcia-Mir v. Meese, the subject of judicial review was an order by the United States Attorney General allowing indefinite detention of a group of Cuban refugees pending deportation proceedings.(125)
The Garcia-Mir court held that Attorney General Meese's order was sufficient to deny the plaintiffs' redress in United States courts under principles of international law.(126) It noted that international law is United States law, and should not be derogated from "where there is no treaty and no controlling executive act or judicial decision . . . ."(127) Relying on this dicta, the court asserted that the Attorney General, as a member of the Executive Branch, has authority under the Constitution to "disregard international law in service of domestic needs," and held that the Attorney General's order was valid.(128)
Review of The Paquete Habana and Garcia-Mir reveals an ironic result. In the former case, the Secretary of the Navy's order was actually issued in furtherance of the President's declaration that the United States Armed wartime forces comply with international law.(129) The Paquete Habana did not affirm the Secretary of the Navy's authority to create an order that superseded international law.(130) Yet relying in part on The Paquete Habana decision, Garcia-Mir held that the Attorney General, as a member of the Executive Branch, could issue an order that carries the force and effect of international law.(131) It held that Edwin Meese's order superseded customary international law, which prohibits arbitrary, indefinite detention.(132) By its interpretation of The Paquete Habana, the Garcia-Mir court, with no constitutional basis, implicitly ranked the authority of the Attorney General above the Secretary of the Navy during wartime.(133)
C. Verdugo-Urquidez(134) Continued the Trend Away From Principals Established in The Paquete Habana
The Supreme Court continues to validate the actions of state officials who ignore due process when apprehending foreign drug suspects. In 1990, the Supreme Court held in United States v. Verdugo-Urquidez that the search and seizure of an alien drug suspect's property in Mexico did not violate the Fourth Amendment.(135) In that case, United States agents conducted a search of the defendant's property with the complicity of Mexican authorities.(136)
The Court justified its refusal to apply the Constitution based on the text in the Bill of Rights which refers to "the people."(137) It noted that the Framers of the Constitution intended "to protect the people of the United States against arbitrary action by their own Government. It was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens beyond United States territory."(138)
One fault in the Verdugo-Urquidez majority's reasoning appears when one considers the United States' history of seeking escape from repressive foreign governments.(139) The Framers developed the Fourth Amendment to assure that individuals would not be arbitrarily seized and searched by a hostile government.(140) Considering these points, it is logical to interpret the Bill of Rights in a way that ensures the United States does not treat South America as England did its colonial settlers in America.(141)
A. The International Covenant on Civil and Political Rights is an Effective Policy Template
The United States should interpret its due process standards in accordance with international legal norms.(142) At international law, nations may derogate from certain human rights under exigent circumstances.(143) The situations of Israel and the United Kingdom are controversial, yet derogations by those countries in most cases comport with the criteria for state emergencies as set forth in international treaties.(144)
Similarly, the United States should derogate from international law only when necessary to meet the exigencies of a situation. If the fight against drugs qualifies as such a situation, the ICCPR provides a way to derogate.(145) Article 4 allows limited derogation from certain rights when nations are faced with a legitimate threat.(146) However, some basic rights, such as the right to be free from "cruel, inhuman or degrading treatment or punishment" may never be denied.(147)
B. Proponents of the United States Fight Against Drugs Should Demonstrate that Its Situation Rises to the Level of Exigency Contemplated by International Law
As controversial as the Israeli and United Kingdom derogations from international law may be, the United States' fight against drugs argument may be an even less compelling reason to derogate.(148) In the United States, those against extending due process protection to aliens argue that many suspects are wanted for their involvement in the drug trade, and it is fighting against drugs.(149) To be on equal legal footing with Israel and the United Kingdom, the United States should demonstrate a compelling national emergency comparable to experiences of those nations, where religious and political conflicts have led directly to the brutal deaths of scores of innocent citizens through terrorism and other acts of war.(150) Moreover, since former President Ronald Reagan declared the war against illegal drugs, there has been no indication that the demand has abated.(151) Therefore, the mere assertion that illegal drugs contribute to many of the social problems in the United States, may not be sufficient justification to ignore due process and depart from international law.
One way to demonstrate the existence of a state emergency would be to adopt the test established by the court in Lawless v. United Kingdom.(152) If the United States Department of State could establish that the drug cartel responsible for the murder of agent Camarena was: (1) an armed illegal group, and (2) that actual acts of violence were carried out by the group, and (3) that the threat of more violence in and beyond United States borders existed, then it might justify derogating from international law.(153) Such derogation should be limited by what is permitted in article 4 of the ICCPR.(154)
Principles of international law highlight the need for reversal of the Alvarez-Machain trend.(155) The United States should be guided by these principles found in treaties to which it is a State party, such as the International Covenant on Civil and Political Rights, and other treaties which permit derogation only in legitimate state emergencies.(156) Moreover, the United States and other countries are bound by treaties they have not signed or ratified if a court interprets the treaty as a codification of existing customary international law.(157) Thus, even though the United States is not a party to the European Convention on Human rights, a body such as the International Court of Justice (ICJ) may declare that the United States is bound to honor certain provisions of that treaty.(158) The ICJ could also declare that by widespread state practice, the non-derogable clauses of the International Covenant on Civil and Political Rights define the scope of legitimate state emergencies under which the United States may derogate.(159) The United States Constitution and principles of international law compel the United States to honor the limits imposed on governments that seek to bring alien fugitives to justice. In the spirit of international cooperation, the United States should "come to its senses,"(160) by reversing the Alvarez-Machain trend, and do so without being compelled by the international community.
1. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J. dissenting).
2. David Schrieberg, Camarena Case Continues to Vex U.S. Prosecutors, D.E.A. Fears Mexican Officials Are Getting Away With Murder, The Orange County Register, Dec. 26, 1992, at A22.
3. United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992).
4. Linda Deutsch, Who Ok'd Alleged Mexico Abduction? Judge Tells Prosecutor He Wants Top Name, The Sacramento Bee, May 22, 1990, at B6.
5. Henry Weinstein, 2 Ex-Officials in Mexico Indicted in Camarena Murder, Los Angeles Times, Feb. 1, 1990, at 3.
6. Alvarez-Machain, 504 U.S. at 657.
7. Id.
8. See e.g., Extradition Treaty, May 4, 1978 [1979], U.S.-Mex., art. 9, 31 U.S.T. 5059, 5065 [hereinafter Extradition Treaty]. The relevant portion of article 9 states:
1. Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be ddfeemed proper to do so.
2. If extradition is not granted pursuant to article one 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.
9. Id. at 669, (stating that "the general principles [of international law] cited by the respondents simply fail to persuade us that we should imply in the United States-Mexico Extradition Treaty a term prohibiting international abductions.").
10. Jorge G. Castaneda, Not the Finest Hour for U.S., Mexico or Justice, Houston Chronicle, Dec. 30, 1992, at 11.
11. The Supreme Court established the rule in Ker v. Illinois, 119 U.S. 436 (1886)[hereinafter the Ker doctrine], that "forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such offense." Frisbie v. Collins, 342 U.S. 519, 522 (1952) (upholding the Ker doctrine). See also United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (holding that the Fourth Amendment does not apply to the "search and seizure of property that is owned by a nonresident alien and located in a foreign country."). Alvarez-Machain, 504 U.S. 655, 657(extradition treaty between the United States and Mexico does not bar forcible abduction of a Mexican national from his country to the United States for trial); United States v. Matta-Ballesteros, 71 F.3d 754, 762 n.3 (9th Cir. 1995) (upholding Alvarez-Machain, 504 U.S. 655, 657, and citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975), and United States v. Crews, 445 U.S. 463, 474 (1980), which acknowledged the illegality of a warrantless seizure, but declared that the government may nevertheless prosecute the defendant).
12. U.S. Const. amend IV states:
The Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
13. Verdugo-Urquidez, 494 U.S. at 261.
14. Alvarez-Machain, 504 U.S. at 669.
15. Alvarez-Machain holds that United States agents do not violate international law by kidnaping and bringing to the United States a criminal defendant abroad who lacks United States residency or citizenship. 504 U.S. at 669. However, contrast this with the Universal Declaration of Human Rights, which forbids arbitrary arrest, attention or exile." art. 9, Dec. 10, 1948, U.N.G.A. Res. 217 (III 1948) [hereinafter Universal Declaration]. See also U.S. Const. amend. IV, which condemns warrantless seizure of persons. But see Gerstein v. Pugh, 420 U.S. 103 (1975), which holds that the government may still maintain custody of a person seized in violation of the Fourth Amendment. Id. at 119.
16. See e.g., former Secretary of State George Schultz' speech before the General Assembly of the Organization of American States (OAS) (stating: "Conscious of the dangers of drugs, we must fight them without quarter from the city streets to the most isolated of rural hamlets.") 1/1/89 U.S. Dep't St. Dispatch 10, available in 1989 WL 2469027 [hereinafter George Schultz]. Additionally, a dispatch by the State Department to the Soviet Ministry of Foreign Affairs focused on international threats to security. It noted the fear of "new threats to personal security - the international drug trade, terrorism, and ecological damage." 2/1/89 U.S. Dep't St. Dispatch 38, available in 1989 WL 2468985 [hereinafter Soviet Dispatch]. These State Department comments equate the gravity of the international drug trade with war and terrorism.
17. George Schultz, supra note 15.
18. See e.g., Katherine Greider, Crackpot Ideas: Exaggerated Reports of Damage Done to Babies Born to Mothers Who Use Crack, Mother Jones, Vol. 20, No. 4, July 17, 1995, available in Westlaw, 1995 WL 10029700 (asserting that the government, through conventional media, has overstated the magnitude of the drug problem and its effects in America).
19. See e.g., Verdugo-Urquidez, 494 U.S. at 261; see also Alvarez-Machain, 504 U.S. at 669 (applying the Ker doctrine to the warrantless arrest and abduction by United States agents of a Mexican national in Mexico, for trial in the United States).
20. Comity among nations is defined as: "The recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protections of its laws." Blacks's Law Dictionary 267 (6th ed. 1990).
21. Id.
22. The term "unconstitutional" refers to the means employed by the Drug Enforcement Agency (DEA) in Alvarez-Machain as inappropriate where a majority of the Supreme Court decided that the Constitution did not apply. Alvarez-Machain, 504 U.S. at 669, 670. Nevertheless, the fact that the suspect "was forcibly kidnaped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Texas, where he was arrested by DEA officials[,]" should not be underemphasized. Id. at 657. Although the Court declared those actions acceptable, the methods used by the DEA go beyond the protections enumerated in the Fourth Amendment; hence the term "extraconstitutional."
23. Verdugo-Urquidez, 494 U.S. at 259.
24. Alvarez-Machain, 504 U.S. at 655.
25. See e.g., American Convention on Human Rights, opened for signature Nov. 22, 1969, art. 27(1), OEA/ser. K/XVY1.1, Doc. 65, Rev. 1, Corr. 1 O.A.S.T.S. No. 36 (1970)[hereinafter American Convention]. See also Ireland v. United Kingdom, 2 E.H.R.R. 25, 1978 Y.B. Eur. Conv. on H.R. 602; Lawless v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978)(listing the criteria that must be present before resorting to a declaration of state emergency: (1) Armed illegal group; (2) actual acts of violence carried out by members of that group, and (3) the threat of more violence in and beyond the borders of that nation).
26. Alvarez-Machain, 504 U.S. at 657.
27. Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland Cmnd. 5185. London, H.M.S.O. (1972) [hereinafter Northern Ireland Report].
28. Thomas P. Foley, Public Security and Individual Freedom: The Dilemma of Northern Ireland, 8 Yale J. World Pub. Ord. 284 (1982) [hereinafter Foley] (citing the Northern Ireland (Emergency Provisions) Act, 1978, ch. 5 [hereinafter EPA]).
29. Northern Ireland (Special Powers) Act, 1923.
30. Foley, supra note 27, at 286.
31. Id. at 292-93.
32. Id. at 297-98.
33. Id. at 298.
34. Id. at 298, n.106.
35. Most defendants confess under the stringent Diplock interrogation methods. Although observers question whether under these interrogations all or even a majority of the defendants are in fact guilty, the confessions themselves, since they are presumed true, become the focus of the Diplock magistrates' inquiry. Foley, supra note 27, at 299.
36. Id. at 294-95.
37. Id. at 294.
38. Id. at 296.
39. Id. at 294, 296.
40. Foley, supra note 27, at 294, 296.
41. See W.L. Twining, Emergency Powers and Criminal Process: The Diplock Report, Crim.L.R. 406, 410 (1973).
42. Foley, supra note 27, at 296.
43. Twining, supra note 40, at 411.
44. Storer H. Rowley, Israel: Beating of Terror Suspects Sparks a Painful Debate; Torture Destroys Country's Moral Fibre, Critics Argue, The Ottawa Citizen, Sept. 7, 1995 at F13.
45. See e.g., Peter J. Morgan III, Recent Israeli Security Measures Under the Fourth Geneva Convention, 3 Conn. J. Int'l L. 485 (1988) (noting the Israeli policy of "deportations, preventive detentions, and curfews, and with a new policy of 'Force Power and Blows.'").
46. Id.
47. Rowley, supra note 43, at F13.
48. Id.
49. Morgan, supra note 44, at 491-98.
50. See Reid v. Covert, 354 U.S. 1, 5 (1957) (holding that a defendant's constitutional right to a jury trial may not be abandoned when she is prosecuted for crimes committed outside the United States borders).
51. Extradition Treaty, supra note 7.
52. See e.g., Verdugo-Urquidez, 494 U.S. at 261.
53. U.S. Const. art. III, §2, cl. 1 extends power to the Judiciary:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
Since article III imposes the burdens of Judicial power on foreign citizens, fairness requires that the Bill of Rights also be extended to protect them.
54. See e.g., George Schultz, supra note 15. During this address, Mr. Schultz continued:
The consumption of illegal drugs is a pervasive evil, poisoning public and private life throughout our hemisphere. Trafficking is international. A vast network links growers on the slopes of the Andes to users on the city streets in North America. It is an evil business that undermines law and democracy and human dignity wherever it touches.
55. See Greider, supra note 17, and accompanying text.
56. Reid v. Covert, 354 U.S. at 5.
57. Id. at 6.
58. Id. at 3.
59. Id. at 20.
60. Id. at 21. See also U.S. Const. amend. VI.
61. Alvarez-Machain, 504 U.S. at 669. See also Extradition Treaty, supra note 7, art. 9.
62. Alvarez-Machain, 504 U.S. at 669.
63. Id. at 657.
64. Id.
65. Id.
66. Id. See also Extradition Treaty, supra note 7.
67. Alvarez-Machain, 504 U.S. at 669. However, the fact that the treaty does not contemplate the forcible abduction of a fugitive arguably speaks more to the absurdity of the Government's action than to its implicit permissibility.
68. Alvarez-Machain, 504 U.S. at 669.
69. Id. at 660 (citing Ker v. Illinois, 119 U.S. at 436).
70. Ker, 114 U.S. at 444.
71. Id.
72. Alvarez-Machain, 504 U.S. at 663.
73. Id. at 662.
74. Id.
75. Id. at 662 n.9.
76. Id. at 662.
77. Alvarez-Machain, 504 U.S. at 662.
78. Id. at 660.
79. Id. at 661 n.6 (citing Kester, Some Myths of United States Extradition Law, 76 Geo. L.J. 1441, 1451 (1988).
80. Id.
81. Id.
82. See Extradition Treaty, supra note 7, and accompanying text. See also International Covenant on Civil and Political Rights, art. 62, December 16, 1966, 999 U.N.T.S. 171, (forbidding arbitrary arrest and detention) [hereinafter ICCPR].
83. Extradition Treaty, supra note 7, art. 1. Article 1 establishes the duty to extradite prisoners according to the terms of the treaty. Article 26 of the Vienna Convention on the Law of Treaties States: "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Vienna Convention on the Law of Treaties, art. 26, opened for signature May 23, 1969, U.N. Doc. A/CONF. 39/27. The United States has not ratified the Vienna Convention. However, the "Department of State recognizes the Vienna Convention as the authoritative guide to current treaty law and practice." Carter, Trimble, International law, at 111 (2d ed. 1995) [hereinafter Carter]. Based on this recognition of authority, and its status as a "codification of the existing customary international law of treaties," the United States, by refusing to honor the primary object and purpose of its extradition treaty with Mexico, violated customary international law. Id.
84. See e.g., George Schultz, supra note 15. See also ICCPR, supra note 81, art. 4. Article 4, the derogation clause, lists several basic rights protected by in the articles of that treaty. These rights may never be derogated from. Id. For example, article 4 expressly prohibits derogation under any circumstances from article 6, which enumerates the right to life. Id., art. 4.
Article 9 is not enumerated in article 4, and therefore, derogation "strictly required by the exigencies of the situation" is permissible. Id., art. 4. The language of article 9 is generally equivalent to the Fourth Amendment. Id., art. 9. If called upon to defend her Diplock Courts, the United Kingdom would probably claim that an exigent situation exists in Northern Ireland, permitting derogation from article 9. See e.g., Foley, supra note 27, at 289. Note also that the ticking bomb argument espoused by Israel implicitly advocates derogation from article 7, the right to be free from torture. See e.g., Rowley, supra note 43, at F13. Unlike article 9, article 7 is a nonderogable provision of the treaty. See ICCPR, supra note 81, art. 4. Israel, a State party to this treaty, is in effect claiming its situation justifies violation of the ICCPR. See Rowley, supra note 43.
85. See Northern Ireland Report, supra note 26, and accompanying text. See also Morgan, supra note 44, and accompanying text.
86. United States v. Matta-Ballesteros, 71 F.3d 754, 762, 763 (9th Cir. 1995).
87. Alvarez-Machain, 504 U.S. at 657.
88. Matta-Ballesteros, 71 F.3d at 761.
89. Id.
90. Id.
91. Id.
92. Id.
93. Matta-Ballesteros, 71 F.3d at 761.
94. Id. at 762.
95. United States v. Toscanino, 500 F.2d 267 (2d Cir.1974).
96. Matta-Ballesteros, 71 F.3d at 763.
97. Toscanino, 500 F.2d at 269-70.
98. Id. at 281.
99. Id. at 272. The court cited a number of cases in order to support its assertion that purposeful and unnecessary illegal conduct, performed in order to capture and prosecute a defendant, constitutes a denial of due process: United States v. Russell, 411 U.S. 423, 430-31 (1973); Miranda v. Arizona, 384 U.S. 436 (1966); Wong Sun v. United States, 371 U.S. 471 (1963) Mapp v. Ohio, 367 U.S. 643 (1961); Silverman v. United States, 365 U.S. 505 (1961)).
100. Id. at 272.
101. Matta-Ballesteros, 71 F.3d at 763 n.3 (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Crews, 445 U.S. 463, 474 (1980)).
102. Id. at 763.
103. See Honduras-United States Extradition Treaty (37 Stat. 1616; 45 Stat. 2489), Art. VIII; 1933 Inter-Americas Extradition Treaty (49 Stat. 3111), Arts. II-IV, XXI (1909).
104. Matta-Ballesteros, 71 F.3d at 762.
105. Id. at 762-64.
106. Id. at 764 n.5 (noting that extraterritorial kidnaping of alien fugitives does not violate United States law after Alvarez-Machain. However, torture is a violation of "jus cogens norms, which are nonderogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and can not be preempted." Committee of U.S. Citizens Living in Nicaragua v. Reagan, 829 F.2d 929, 939-40 (D.C.Cir. 1988)). See also, Universal Declaration, supra note 14, at art. 9. While this provision makes abduction by law enforcement agents a violation of international law, the Matta-Ballesteros court notes that it does not violate jus cogens norms. Matta-Ballesteros, 71 F.3d at 764 n.5.
107. Matta-Ballesteros, 71 F.3d at 764 (citing United States v. Valot, 625 F.2d 308, 310 (9th Cir. 1980).
108. Id. Note that among the governmental acts alleged by the defendant was repeated burning with a stun gun. Id. The court acknowledged that eyewitness reports were available. Id. Apparently, the court believed that the acts in Toscanino, among them, the deprivation of food and water, and systematic torture and an effort to leave no scars shocked the Matta-Ballesteros court. Toscanino, 500 F.2d at 270. However, government agents burning the defendants genitals with stun guns did not. Matta-Ballesteros, 71 F.3d at 761, 764.
109. Matta-Ballesteros, 71 F.3d at 772 (Noonan, Cir. J., concurring).
110. Id. at 775.
111. Id. (citing United States v. Matta, 937 F.2d 567 (11th Cir.1991).
112. Id.
113. Id. at 775 (citing 136 Cong. Rec. S17491 (Oct. 27, 1990); UN Doc. No. 571 Leg/SER.E/13,IV.9 (1995)).
114. Matta-Ballesteros, 71 F.3d at 775 (Noonan, J., concurring).
115. Customary international law consists of obligations inferred from the general practice of states followed out of a sense of legal obligation (opinio juris). See e.g., Statute of the International Court of Justice, 26 June 1945, art. 38 para. 1(a)-(d), 59 Stat. 1055, 1060. See also Carter, supra note 82, at 244-45.
116. The Paquete Habana, 175 U.S. 677, 700 (1900).
117. The Paquete Habana, 175 U.S. at 700-701 (citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215 (1895)).
118. Id. at 701-08 (citing sources of French, German and British Law exempting innocent fishing vessels from capture as prize of war).
119. Id. at 714.
120. Id.
121. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
122. Id. at 878 (holding "that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.").
123. Id. at 880.
124. Garcia-Mir v. Meese, 788 F.2d 1447, 1448 (11th Cir. 1986).
125. Garcia-Mir, 788 F.2d at 1447-48.
126. Id. at 1448, 1455.
127. Id. at 1453 (citing The Paquete Habana, 175 U.S. at 700).
128. Id. at 1455. See also U.S. Const. art. II.
129. The Paquete Habana, 175 U.S. at 714.
130. See Jordan J. Paust, Paquete and the President, 34 Va .J. Int'l L. 979 (1994). According to Paust, the Executive's Brief in The Paquete Habana supports his view of Justice Gray's dictum, which is that where no previous source of United States law existed which already interprets and states the applicable international law, courts should look to traditional sources of international law for definitive statements. Id. at 985. Justice Gray's statement: "where there is no treaty, and no controlling executive or legislative act, or judicial decision," was a reference to the hierarchy of sources for interpreting international law, not an attempt to resolve a nonexistent conflict between domestic and international law.
131. Garcia-Mir, 788 F.2d at 1454, 1455 (citing U.S. Const. art. II). The court asserted that the President can issue an order that violates customary international law. The Attorney General, because he is an Executive Branch department head, can act on behalf of the President. Therefore, the Attorney General can issue an order that conflicts with international law.
132. U.S. Const. amend. IV.; ICCPR, supra note 81, art. 62.
133. Garcia-Mir, 788 F.2d at 1455 (citing U.S. Const. art. II, which refers to, but does not rank, the Department Heads of the Executive Branch). Also, one might question the wisdom of allowing Meese to order the indefinite incarceration of the Mariel refugees, because doing so allows the prosecutor (chief investigator) to perform a function normally reserved for the judiciary. Courts have generally blocked attempts to do this. For example, in a Fourth Amendment case, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), a Town Justice accompanied police to raid a store which allegedly sold some obscene films. The Justice accompanied the police so that he could determine what was, and was not, obscene, and create at the store the list of items to be seized. The Lo-Ji Court noted that "whatever neutral and detached posture existed" was gone when the Town Justice "allowed himself to become a member, if not the leader, of the search party which was essentially a police operation." Id. at 328 n.6. In Lo-Ji, then, the magistrate tried to take the job of the police and the Court disallowed it. Id. In Garcia-Mir, there was an analogous though factually opposite scenario. The Attorney General set policy regarding the status of the refugees he was trying to deport. Prosecutor Meese took the job of the judiciary and the Eleventh Circuit Court let him. Garcia-Mir, 788 F.2d at 1455.
134. Verdugo-Urquidez, 494 U.S. at 261 (holding that the Fourth Amendment does not apply to the "search and seizure of property that is owned by a nonresident alien and located in a foreign country.").
135. Verdugo-Urquidez, 494 U.S. at 261, 275.
136. Id.
137. Id. See also U.S. Const. amend. IV.
138. Verdugo-Urquidez, 494 U.S. at 261, 275.
139. Id. at 286 (Brennan, J. dissenting).
140. The Fourth Amendment was crafted to ensure that officials of a hostile government (England), could never again knock on the door in the middle of the night and bring an American back to the British courts for trial. Boyd v. United States, 116 U.S. 616, 625 (1886).
141. Verdugo-Urquidez, 494 U.S. at 286 (Brennan, J. dissenting).
142. United States Courts frequently look to the International Covenant on Civil and Political Rights for guidance in deciding international law cases. ICCPR, supra note 81. See e.g., Filartiga, 630 F.2d at 886; United States v. Romano, 706 F.2d 370, 375 (2d Cir. 1983); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 818 (D.C. App. Ct. 1984) (Edwards, J., concurring).
143. ICCPR, supra note 81, art. 4. See also American Convention, supra note 24.
144. This has been defined as "an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the state is composed." Id. However one problem identified by critics is "judicial deference to the states' assessment of risk[.]" Fionnuala Ni Aolain, The Emergence Of Diversity: Differences In Human Rights Jurisprudence, 19 Fordham Int'l L.J. 101, 111-12 (observing that a State's declaration of emergency is likely to be accepted without question by the European Court).
145. ICCPR, supra note 81, art. 4 (allowing derogation from certain human rights, but never articles 6 (inherent right to life), 7 (cruel, inhuman or degrading treatment or punishment), 8(1) (slavery) and (2) (involuntary servitude), 11 (imprisonment based on inability to fulfill a contract), 15 (ex post facto criminal convictions), 16 (recognition as a person everywhere under the law), and 18 (freedom of thought, conscience, religion, and freedom of parents to raise their children in conformity with their beliefs)).
146. Id.
147. Id. (enumerating article 7 as a nonderogable treaty provision).
148. See American Convention, supra note 24; ICCPR, supra note 81, art. 4.
149. See George Schultz, supra note 15.
150. James Warren, Fighting Terrorism is a Double Edged Sword, Chicago Tribune, Mar. 8, 1996 at 3; Kevin Helliker, Northern Ireland Loyalists Kill a Catholic Man, Wall Street Journal, Wednesday, Dec. 1, 1993.
151. It appears that the United States' commitment to the drug war peaks around congressional elections, and wanes when budget sessions are in progress. See e.g., Congress Does Not Have The Courage Of Its Convictions In The War On Drugs, 135 Cong.Rec. H2021-01 (May 18, 1989)(statement of Rep. Miller) (remarking about the conviction of the drug profiteers, lamenting the losing war on drugs, and exhorting his colleagues to show conviction to fight on and overcome the drug trade.). See also Greider, supra note 17.
152. Lawless v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978)(listing the criteria that must be present before resorting to a declaration of state emergency: (1) Armed illegal group; (2) actual acts of violence carried out by members of that group, and (3) the threat of more violence in and beyond the borders of that nation).
153. Id.
154. ICCPR, supra note 81, art. 4.
155. See generally ICCPR, supra note 81.
156. Id.
157. Examples of customary international law may be derived from any number of sources, including treaties which a State has not ratified. See Carter, supra note 82, at 245. Non-ratified treaties become customary international law when enough states practice the terms of the treaty. Id. See also Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.) 1984 I.C.J. 392.
158. Carter, supra note 82, at 245.
159. See e.g., ICCPR, supra note 81, art. 4; Carter, supra note 82, at 245.
160. Carter, supra note 82, at 809-11 (noting that political leaders "have generally criticized
the decision and the attitude of the U.S. Government[.]").
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