Amicus Curiae Brief — United States v. Alvarez-Machain

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ee,

No. 91-712

Supreme Court, U.S.

™ T

IN THE | MAR 4 1992

Supreme Court of the United States o we cure

OCTOBER TERM, 1991

UNITED STATES OF AMERICA,

Petitioner,

—_—V—

HUMBERTO AL VAREZ-MACHAIN,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF ALLARD K. LOWENSTEIN

INTERNATIONAL HUMAN RIGHTS CLINIC AND THE

CENTER FOR CONSTITUTIONAL RIGHTS IN SUPPORT

OF RESPONDENT

MICHAEL RATNER *HAROLD HONGJU KOH

BETH STEPHENS Lowenstein International

PETER WEISS Human Rights Clinic

JOSE LUIS MORIN Allard K. Lowenstein

DAVID COLE International Human :

Center for Constitutional Rights Rights Law Project

666 Broadway 127 Wall Street

New York, N.Y. 10012 New Haven, CT 06520

(212) 614-6464 (203) 432-4932

Attorneys for Amici Curiae

On the Brief:

Thomas R. Hyde

Caroline D. Krass

L. Song Richardson

*Counsel of Record

BEST AVAILABLE COPY”

QUESTIONS PRESENTED

1. Whether lower executive officials may reinterpret a

bilateral extradition treaty to add a new term authorizing forcible,

unconsented governmental kidnapping, without legislative approval

and over the treaty partner's repeated protests.

2. Whether this Court should sanction an executive

reinterpretation of an extradition treaty that nullifies the treaty by

violating the very norms of international law that gave it rise.

TABLEOF CONTENTS

EEE .<0csssancscncsesessssonstossessecsssscssesscssecseceseesees i

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I EE CREEEEORIS ............cccccsascsssssnssssssssensssssscsssssnecsese l

ET onc scsnnncccsesnaceessosovsecoseseesscssessvesssnsesesonees 4

cea cccscscnennddsdceesenncnsnescsesseccosorseeeeaoes )

I. LOWER EXECUTIVE OFFICIALS MAY NOT

REINTERPRET A MANDATORY BILATERAL

EXTRADITION TREATY TO ADD A NEW TERM

PERMITTING FORCIBLE, UNCONSENTED

GOVERNMENTAL KIDNAPPING................:.ccccccccsesesseseeeees )

The Plain Language of the U.S.-Mexico

Treaty Establishes Mandatory Prosecute-or-

Extradite Procedures That Are Exclusive in

All Cases Not Involving Consensual

IT iT lascebceessindeidnasnscansesscsnsnnescvecseceseecese 13

To Avoid the Treaty’s Mandatory Language, the

Justice Department Has Written a New Implied

Term into Article 9, Authorizing Forcible,

Unconsented Governmental Kidnapping .................. 16

The Negotiating and Ratification Histories of the

Treaty Confirm that Petitioner's New Implied Term

sa scsccinnisccnccnsenccese 20

Il.

III.

Page

THIS COURT SHOULD NOT AUTHORIZE DF

FACTO AMENDMENT OF A TREATY BY LOWER

EXECUTIVE OFFICIALS WITHOUT

CONGRESSIONAL CONSULTATION OR CONSENT,

AND OVER THE REPEATED, UNEQUIVOCAL

OBJECTIONS OF OUR TREATY PARTNER 104

A. This Court Should Not Sanction a Treaty

Amendment Effected by Lower Executive Officials

Without Congressional Consultation or Consent.....27

B. This Court Should Not Sanction a Treaty

Amendment Effected by Lower Executive Officials

Over the Repeated, Unequivocal Objections of Our

Treaty Partner eed eacsenneaedisbeenseaneanienmecinuennall

THIS COURT SHOULD NOT SANCTION AN

EXECUTIVE REINTERPRETATION OF A TREATY

THAT NULLIFIES THE TREATY BY VIOLATING

THE NORMS OF INTERNATIONAL LAW THAT

GAVE IT RISE scradensataniiiicetisasiinddlasinenianiitisanlinniitaineet

A. This Court Must Construe the Extradition Treaty in

Accordance With Its Object and Purpose and Well-

Settled Rules of International Law ........0..0.0c:0e0 37

B. Forcible, Unconsented, State-Sponsored Abductions

Defeat the Object and Purpose of an Extradition

Treaty and Violate Settled Rules of Both Customary

and Conventional International Law ..................000+. 40)

.. No Serious Dispute Exists Regarding Respondent's

"Standing" to Raise the Treaty Violation ................. 47

D. No United States Court Has Ever Tried an Illegally

Kidnapped Foreign National, Brought Here In

Violation of a Valid Extradition Treaty, Over the

Treaty Partner's Repeated Protests... 50

Cases:

TABLE OF AUTHORITIES

Air France v. Saks, 470 U.S. 39 (1985)..0000....... 23

Alfred Dunhill of London, Inc. v. Republic of Cuba,

I es SE PII scutenressisessanonscomencecenece 3]

Amiable Isabella, The, 19 U.S. (6 Wheat.) 1

Ree isiatcesttiniesciniccalitigciistansepndnisdusabiedsissesenseen 19

Asakura v. City of Seattle, 265 U.S. 332

Sean TTIiicadisniacnscetshanseinapiciaiesciiesaianiatsleiasetadsimeniiin 49

Chan v. Korean Air Lines, Ltd., 490 U.S. 122

SE TSTTE a intispiceidunssesabcteutionpshisliahsesidensbesaananmnniteileie 19, 32

Commonwealth v. Deacon, 10 Serg. & Rawle 125

TRUITT scemricieisdanaditesanndiisepemtnsiesiadamasadécieaseiin 45

Day v. Trans World Airlines, 528 F.2d 31

Se Ta. PE inntestnicisenicenisssennmneeneenicnamesnes 39

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.

En 3

First Nat'l City Bank v. Banco Nacional de

Cuba, 406 U.S. 759 (1972)... 32

Frisbie v. Collins, 342 U.S. 519 (1952)... 45

Goldwater v. Carter, 444 U.S. 996 (1979)....... 37

Immigration and Naturalization Service v.

Stevic, 467 U.S. 407 (1984)... 20

Jaffe v. Smith, 825 F.2d 304 (11th Cir.

IPT Tis ssecsinhannisealiadbiaiintcsenéninneenniesssaloeiecs 43

Japan Whaling Ass'n v. American Cetacean Soc’y,

Re Ps Be Ce cerscnestertntiiesosiicicnene 26

Johnson v. Browne, 205 U.S. 309 (1907)......... 30

Ker v. Illinois, 119 U.S. 436 (1886)....000000000..... 21

Mahon v. Justice, 56 U.S. 700 (1888)... 45, 46

Maximov v. United States, 373 U.S. 49

eR EAR AS 19

Page

Murray v. Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64 (1804)... eeeeeeeeeees 37

New York Indians v. United States, 170 U.S.

DE ee iceanceincsisdcensiniinicatatesinsinceinivesinenscosesaness 34

Paquete Habana, The, 175 U.S. 677

Fier eicccccunidiisataisteeaditiaiibalastnts ouhalisceisaeunin 54

Paul, et al. v. Avril, No. 91-0399 (S.D.

Fla. filed Feb. 28, 1991)...........ssc.ss0c00+- 2

Perkins v. Elg, 307 U.S. 325 (1939)... 30

Rainbow Navigation v. Department of the Navy,

699 F. Supp. 339 (D.D.C. 1988), rev'd

on other grounds, 911 F.2d 797

CEE. Ce: Fi peccsesssncsncvcsesonecasrenssesecsenes 26, 30

S.S. Lotus, The, P.C.LJ., (ser. A) No. 10,

Oe TI Ge Pikcsicincesestesnssecccencsstonennssnetennsenie 40)

Schooner Exchange v. McFaddon, 11 U.S.

eee U8 YT): Se 40)

Securities Industry Association v. Board of

Governors of the Federal Reserve

System, 468 U.S. 137 (1984).........:0. 31

Societe Nationale Industrielle Aerospatiale v.

U. S. Dist. Ct, 482 U.S. 522 (1987)...... 20. 40

Sumitomo Shoji America v. Avagliano, 457

6 i 7)... Renner 2 AS

Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243 (1984)... cess: 19, 20

United States v. Alvarez-Machain, 745 F.

Supp. 599 (C.D. Cal. 1990), affd

946 F.2d 1466 (1991), cert. granted 116

me Tt, | eee 12

United States ex. rel. Lujan v. Gengler, 510

Pp Late fe 42, 45

United States v. Najohn, 785 F.2d 1420

(9th Cir.), cert. denied, 479 U.S. 1009

United States v. PLO, 695 F. Supp. 1456 (S.D.N.Y.

REI EL er MO ee LR ee 38

United States v. Rauscher, 119 U.S. 407

I asesiiciempnciatatiitia se 7, 21, 39, 47, 49

United States v. Stuart, 489 U.S. 353 (1989).. 19, 20

United States v. Therion, 813 F.2d 146

A ERIE NSERC ee 47

United States v. Toscanino, 500) F. 2d 267 (2d

I ten a a a 48

United States v. Valot, 625 F.2d 308 (9th

TE aca ete a Soe nD 45

United States v. Verdugo-Urquidez, 939 F.2d

1341 (9th Cir. 1991), petition for cert.

I, FORE DE onccecccccessccscosessccencenees passim

United States v. Vreeken, 603 F. Supp. 715

(D. Utah 1984) aff'd, 803 F.2d 1085

(10th Cir. 1986), cert. denied, 479 U.S.

I Se Dis stincttabesieciasiesiniseadiisntdinnieasias 47

Valentine v. United States ex rel. Neidecker,

EO Ci ictinintcicernrenissensintniidntar 49

Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694

eee asiiesiaesernninniiniitanieistnasaniseestes 20

Wardair Canada v. Florida Dep't of Revenue,

ee I iirrieteilei, 32

Warren v. United States, 340 U.S. 523 (1951) 20

W.S. Kirkpatrick, Inc. v. Environmental Tectonics

Corp., 493 U.S. 400 (1990)... 32

Xuncax, et al. v. Gramajo, No. 91-11564WD

(D. Mass filed June 6, 1991)... 2

Constitution, Statutes, and Treaties:

Art. II, § 2, cl. 2 (Treaty-making clause)......... 26

Art. VI, cl. 2 (Supremacy Clause).....000000000.00.. SO

Agreement on Cooperation in Combatting

Vil

Narcotics Trafficking and Drug Dependency,

United States of America-United

Mexican States, 29 I.L.M. 58 (1990)

(entered into force July 30

Pe crosccssenienssccnsineinccnunsenssente )

Alien Tort Claims Act, 28 U.S.C. §1350

RRA ES Souk Seisore nae 3

Treaty of Extradition, May 4, 1978, United States

of America-United Mexican

States, 31 U.S.T. 5059,

T.LA.S. No. 9656 (entered into force

January 25, 1980)......c:..secereersesesesssesers passim

Ley de Extradicion Internacional, Capitulo I,

Articulo 14, published in Diario

Oficial (Dec. 29, 1975)........0.cscscsseseeeee. 11

Supplementary Convention, Treaty Series No.

421 (entered into force April 13,

I ecisacicinicussniienssinsninesicinspesinaninetoonnesse 9

Supplementary Convention, 44 Stat. 2409,

Treaty Series No. 741 (entered into

force July 11, 1926)..........00scrsersrsreerees 7)

Supplementary Extradition Convention

United States of America-United

Mexican States, 55 Stat. 1133,

Treaty Series No. 967

(entered into force April 14, 1941)... )

Treaty for the Extradition of Criminals, United

States of America-the United Mexican

States, 12 Stat. 1199, Treaty Series

No. 209 (entered into force May 20, 1862:

terminated January 24, 1899)..........cccse 9

Treaty of Cooperation for Mutual Legal Assistance,

United States of America-United

Mexican States for Mutual Legal

Assistance, 27 I.L.M. 443 (1988)

(entered into force May 8, 1991).......... 9

vill

Treaty of Extradition, United States of

Amcrica-United States of Mexico,

31 Stat. 1818, Treaty Series No. 242

(entered into force April 22, 1899:

terminated 1980)...0........ccccccccccocesss.-... 4

Miscellaneous:

ABM Treaty and the Constitution: Joint

Hearings Betore the Senate Comm.

on Foreign Relations and the Senate

Comm. on the Judiciary, The,

100th Cong., Ist Sess. 82 (1987).......... 25. 26

American Law Institute, | Restatement (Third)

of Foreign Relations Law of the

United States § 334(1), at 213 (1987). passim

M. Cherif Bassiouni, International Extradition

and the World Public Order

rai stteninnensisihicianitiontennactabimasniananesin 13, 43, 51

Bills to Authorize Prosecution of Terrorists

and Others Who Attack U.S. Government

Employees and Citizens Abroad:

Hearings on S. 1429 Before the

Subcomm. on Security and Terrorism

of the Senate Comm. on the Judiciary,

99th Cong.. Ist Sess. 63 (1985)... 28

Brief for the United Mexican States as

Amicus Curiae in support of

Granting Review. United States v.

Alvarez-Machain, 946 F.2d 1466

fC eee ee 18, 25

Charter of the Organization of American States.

done at Bogota April 30, 1948, entered

into force Dec. 13, 1951, 2 U.S.T. 2394.

T.LA.S. No. 2361, 119 U.N.T.S.

Protocol of Amendment, done at Buenos

Aires, Feb. 27, 1967, entered into

force, Feb. 27, 1970, 21 U.S.T. 607,

Oe, ae 4]

Diplomatic Instructions of the Department of

I, Fie ee ccstcnsecsssnnesesssseessnsensevses 28

Domestic Letters of the Department of State,

PR ccsisessshisinesatsinsncincsiniensensssensnsnevees 28

William A. Fletcher, The Structure of Standing.

SB Vale LJ. 221 (19GB) nescceeeceeseee-s 48

Hearings on the Legality As a Matter of

Domestic Law of Extraterritorial Law

Enforcement Activities That Depart

From International Law, Before the

Subcommittee on Civil and

Constitutional Rights of the

Committee on the Judiciary, United

States House of Representatives

ee 53

International Covenant on Civil and Political

Rights, Dec. 16, 1966, 999 U.N.T.S. 171,

reprinted in 6 I.L.M. 368 (1967).......... 42

Inter-American Convention on Human Rights,

Art. 7(2), Nov. 22 1969, O.A:S.

Official Records Ser. K/XVI/1.1, Doc.

65, Rev. 1, Corr. 1 (Jan. 7, 1970)........ 42

Justice Department Brief, United States v. Alvarez-

Machain, 946 F.2d 1466 (1991), cert.

granted 116 L. Ed. 2d. 766 (1992)........passim

Justice Department, Office of Legal Counsel,

"Extraterritorial Apprehension by the

Federal Bureau of Investigation.” 4B

Op. Off. Leg. Counsel 543 (March 31,

David A. Koplow, Constitutional Bait and

Switch: Executive Reinterpretation

of Arms Control Treaties,

137 U. Pa. L. Rev. 1353 (1989)........... 34

1 W. Malloy, Treaties, Conventions,

International Acts, Protocols and

Agreements between the United States

of America and Other Powers (1776-

TTT Aiicichsliniddisdtiiieniahaaimnsecidiauiniialiibinipinnanaes 49

John Bassett Moore, A Treatise on Extradition

and Interstate Rendition (1891)........... 51

Lassa Oppenheim, International Law (H.

Lauterpacht ed., 8th ed. 1955).....0.00...... 38, 41

Oversight Hearing on FBI Authority to Seize

Suspects Abroad Before the Subcomm.

on Civil and Constitutional Rights

of the House Judiciary Comm., 100th

Cong... Ist Sens. 6 (19G9)......cccrecsccccsoses: 29

Petition for Certiorari, United States v.

Verdugo-Urquidez, 939 F.2d 1341

(9th Cir. 1991), petition for cert.

ee 50

Presidential Message, Extradition Treaty

Between the United States and

Mexico--Changes in the New Treaty... 22

S. Exec. Doc. L, 92d Cong., Ist Sess. 1

SCA cechaeieeranetaeriaceias teh isiibeldiaasiacianannaen 44

S. Rep. No. 164, 100th Cong., Ist Sess.

Ie I Diaccneccisienisestannhieetsbenteehiiasniehiithiiiningnaii 32

I. Shearer, Extradition in International Law

Oe Ci ae 49

Abraham D. Sofaer, Treaty Interpretation: A

Comment, 137 U. Pa. L. Rev. 1437

Ce icicicensssctncincnaien 34

Joseph G. Starke, An Introduction to

International Law (10th ed. 1989)....... 39

State Department Letter of Transmittal

attached to Senate Advice and

Consent [1978 U.S.-

SE ON cccerstitsinsnincinsndaessccnnsnsninsenis

Laurence H. Tribe, American Constitutional]

Fie Sf es

U.N. Security Council Resolution 138,15 U.N.

U.N. Doc. S/4349,

Resolutions and Decisions (June 23,

Universal Declaration of Human Rights, G.A.

Res. 217A (III), U.N. Doc. A/810,

[FUE ccnshenntasesennenaneigiesaenntonineeunebnininieniiel

Vienna Convention on the Law of Treaties,

opened for signature, May 23, 1969,

Art. 39, 40, U.N. Doc. A/Cont.39/27

(1969), reprinted in 8 I.L.M. 679

20, 22, 23

SCOR,

Views of the Human Rights Committee on

the Complaint of Lopez, July 29,

1981, 36 U.N. GAOR Supp. (No. 40)

U.N. Doc. A/36/40 (1981)... eee

XII

ee eee

a =~ oe a

——

Ve Gaerne sis =

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-712

UNITED STATES OF AMERICA,

Petitioner,

Vv.

HUMBERTO ALVAREZ-MACHAIN

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF ALLARD K. LOWENSTEIN

INTERNATIONAL HUMAN RIGHTS CLINIC AND THE

CENTER FOR CONSTITUTIONAL

RIGHTS IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

The Allard K. Lowenstein International Human Rights Clinic

of the Yale Law School and the Center for Constitutional Rights

hereby submit the attached brief Amicus Curiae supporting affirmance

of the Ninth Circuit's decision in this case.”

The Allard K. Lowenstein International Human Rights Clinic

of the Yale Law School [Human Rights Clinic] was organized in

1991 at the Yale Law School as a faculty-supervised course under

the auspices of the Allard K. Lowenstein International Human Rights

Project, a ten-year old student-run organization that secks to educate

and inspire law students, scholars, practicing attorneys, and

policymakers in the defense of international human rights.

The Human Righis Clinic has important interests in this case

because it is currently acting as co-counsel for the plaintiffs in several

ongoing lawsuits involving the interpretation of important

international human rights treaties. See, ¢.g., Evans Paul, et al. v.

Prosper Avril, No. 91-0399 (S.D. Fla. filed Feb. 28, 1991) (suit

seeking damages for torture, arbitrary detention, cruel, inhuman or

degrading treatment against former dictator of Haiti), Teresa Xuncax,

"amici Curiae file this brief with the consent of both parties in

support of the position advanced by respondent. Letters of consent have

been filed with the Clerk of this Court.

et al. v. HectorGramajo, No. 91-11564WD(D. Mass filed June 6,

1991) (suit seeking damages for summary execution, disappearance,

torture, arbitrary detention, and cruel, inhuman or degrading

treatment against former defense minister of Guatemala). The

important questions of treaty reinterpretation presented in this case

may bear upon the issues in those lawsuits. The Court's disposition

in this case is therefore of great interestto the Human Rights Clinic

and its clients.

The Center for Constitutional Rights [CCR or Center] is a

tax-exempt litigation organization devoted to enforcing the U.S. Bill

of Rights and the International Bill of Rights. The Centerhas a

particular interest in enforcing the norms of international human

rights in United States courts. CCR was the lead counsel in the

landmark case, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980),

which established that the Alien Tort Claims Act, 28 U.S.C. §1350

(1988), grants federal courts jurisdiction to hear cases seeking

compensation for acts of torture that occured outside the United

States. Since the Filartiga decision, the Centerhas been co-counsel

in numerous cases brought pursuant to the Alien Tort Claims Act

involving interpretation of international human rights treaties,

including the cases currently being brought by amicus Human Rights

Clinic. The Court’s decision in this case is thus of great importance

to the Center and its clients.

SUMMARY OF ARGUMENT

In a brief not joined by the State Department Legal

Adviser's office, the Justice Department accuses the Ninth Circuit

of unlawfully reinterpreting the bilateral U.S.-Mexico extradition

treaty, thereby "rewrit{ing] the international agreements to which

this Nation is party.” Justice Department Brief ("JD Br.”) at 24. In

fact, it is the Justice Department that has engaged in unlawiul

treaty reinterpretation, abruptly reading into a well-understood

extradition treaty a new term authorizing forcible, unconsented

governmental kidnapping.

The United States and Mexico entered their bilateral

extradition treaty in 1980 to promote mutual cooperation in law

enforcement. By entering into the treaty, the parties sought to

avoid future disputes, to protect territorial sovereignty, and to

safeguard individual rights by creating an exclusive means for

surrendering a suspect from one country to the other in all cases

not involving consensual rendition. To that end, Article 9 of the

treaty created only two options when one state formally seeks

surrender of a national of the other: extradition or domestic

prosecution.

In this case, low-level Drug Enforcement Administration

(DEA) agents pursued an illegal third option: they forcibly

kidnapped respondent Dr. Alvarez from Mexican territory without

Mexican governmental consent, in bald violation of the treaty.

When Mexico repeatedly demanded respondent's return, Justice

Department lawyers sought to justify the DEA’s action after the

fact by reinterpreting Article 9, reading it to include a new term

that would permit forcible, unconsented governmental abductions.

Having twice failed below to win judicial endorsement of their

novel rewriting, the Department's lawyers now ask this Court to

revise the treaty to permit the very kidnapping option that both

parties negotiated the treaty to preclude.

The Department's reinterpretation does violence to the

structure, plain language, negotiating and ratification histories, and

object and purpose of the treaty. Notwithstanding the

Constitution's treatymaking procedures and principle of separation

of powers, the Department secks to effect its reinterpretation--a de

facto treaty amendment--without presenting that amendment to the

Senate for either consultation or consent. Furthermore, the

Department seeks to amend the treaty over repeated and

vociferous objections by our treaty partner. Should this Court bless

petitioner's revision of this treaty, potentially all of the extradition

treaties to which the United States is currently party could be

similarly reconstrued to permit forcible governmental abductions in

the treaty partner's territory despite its explicit protest. Any of our

treaty partners could invoke such a reinterpretation to justify

forcible abduction of U.S. nationals from U.S. soil, even over our

government's repeated and vehement objections.

This Court should not sanction an executive reinterpretation

of an extradition treaty that would violate the very norms of

international law that form its object and purpose. At least since

United States v. Rauscher, 119 U.S. 407, 429 (1886), this Court has

recognized that extradition treaties must be construed not in

isolation, but in light of the norms of customary and conventional

international law that gave rise to the treaty. Forcible,

unconsented, state-sponsored abductions violate settled rules of

both customary and conventional international law and disrupt

intergovernmental cooperation. The United States and Mexico

negotiated this treaty not simply to expedite prosecutions, but to

promote mutual cooperation, to protect each state’s territorial

sovereignty from forcible intrusions, and to protect individual

suspects from arbitrary arrests and detentions. Not content to read

"shall" as "may," or to rewrite Article 9, the Justice Department now

urges a treaty construction that so violates the parties’ intent as to

effectively nullify the treaty altogether. By standing the treaty on

its head, petitioner has provoked precisely the kind of international

dispute that the extradition treaty was designed to prevent.

No serious dispute exists regarding respondent's "standing"

to raise the treaty violation. The Supremacy Clause, the treaty, and

applicable rules of international law all bar the executive from

trying Mexican nationals who have been abducted to the United

States in violation of the treaty, in cases where Mexico has

unambiguously demanded their return. No United States court has

ever tried a kidnapped foreign national under circumstances such as

these. Nor has this Court ever authorized lower executive officials

to nullify a duly ratified treaty without the advice and consent of

the Senate, over the repeated protests of our treaty partner, and in

flagrant violation of established norms of international law that

formed the treaty’s object and purpose. This Court should reject

petitioner's invitation to condone such lawless conduct.’

'Given the extreme set of facts presented here, this Court may affirm the

Ninth Circuit’s judgment without deciding whether the President himself could

reinterpret a ratified treaty without the advice and consent of the Senate, or

whether the President could reinterpret the extradition treaty with Mexican

approval or acquiescence, in a manner fully consistent with the treaty’s broad

object and purpose and norms of international law.

ARGUMENT

I. LOWER EXECUTIVE OFFICIALS MAY NOT

REINTERPRET A MANDATORY BILATERAL

EXTRADITION TREATY TO ADD A NEW TERM

PERMITTING FORCIBLE, UNCONSENTED

GOVERNMENTAL KIDNAPPING.

Mexico and the United States have cooperated in law

enforcement since 1862. concluding three extradition treaties and

several mutual assistance agreements in criminal matters.” Against

this long history of mutual cooperation, the U.S. and Mexico

negotiated the current treaty, which entered into force on January

“Extradition treaties between the U.S. and Mexico have been in force

since 1862. See Treaty of Extradition, May 4, 1978, United States of America-

United Mexican States, 31 U.S.T. 5059, T.1LA.S. No. 9656 (entered into force

January 25, 1980); Treaty for the Extradition of Criminals, the United States

of America-United Mexican States, 12 Stat. 1199, Treaty Series No. 209

(entered into force May 20, 1862; terminated January 24, 1899); Treaty of

Extradition, United States of America-United States of Mexico, 31 Stat. 1818,

Treaty Series No. 242 (entered into force April 22, 1899; terminated 1980);

Supplementary Convenuon, Treaty Series No. 421 (entered into force April

13, 1903); Supplementary Convention, 44 Stat. 2409, Treaty Series No. 741

(entered into force July 11, 1926); Supplementary Extradition Convention

United States of America-United Mexican States, 55 Stat. 1133, Treaty Series

No. 967 (entered into force April 14, 1941).

The U.S. and Mexico have also conciuded a Treaty of Cooperation

for Mutual Legal Assistance, United States of America-United Mexican States,

27 1.L.M. 443 (1988) (entered into force May 8, 1991); and an Agreement on

Cooperation in Combatting Narcoucs Trafficking and Drug Dependency,

United States of America-United Mexican States, 29 1.L.M. 58 (1990) (entered

into force July 30, 1990).

25, 1980. See Treaty of Extradition, May 4, 1978, United States of

America-United Mexican States, 31 U.S.T. 5059, T.LA.S. No. 9656

(hereinafter "Extradition Treaty"), reprinted in Joint Appendix

("J.A.") at 72. The treaty’s object and purpose, stated explicitly in

its Preamble, was "to cooperate more closely in the fight against

crime, and, to this end, to mutually render better assistance in

matters of extradition.” Id. (emphasis added).

To further this object, the Parties added several provisions

not covered in any of their previous extradition treaties, carefully

designed to accommodate each other's sovereignty conceras. To

ensure mutual certainty regarding the availability of extradition, the

parties carefully specified a list of extraditable crimes (appendix),

expressly excluded offenses of a political and military character (art.

5), and permitted extradition for offenses committed outside the

territory of the requesting state where the person is a national of

the requesting state (art. 1). To address cases such as this, where

one state seeks surrender of a national of the other, the parties

adopted a new Article 9, an “extradite-or-prosecute” provision.

Because Mexican law bars the extradition of Mexican nationals

except in extraordinary circumstances, the parties acknowledged

that the requested state would not "be bound to deliver up its own

nationals.” Id. art. 9(1).° Instead, the requested state would "have

the power to deliver them up if, in its discretion, it be deemed

proper to do so." Id. (emphasis added). "If extradition is not

granted” pursuant to this provision, the parties specified, "the

requested Party shall submit the case to its competent authorities

for the purpose of prosecution . . . ." Id. art. 2. (emphasis added).

+See Ley de Extradicion Internacional, Capitulo I, Articulo 14, published

in Diario Oficial (Dec. 29, 1975) (no Mexican national may be extradited to a

foreign country except in exceptional cases in the discretion of the Executive);

Communication from Secretaria de Relaciones Exteriores Consulada General

to the Honorable Justices of the Ninth Circuit Court of Appeals, J.A. at 68-

69:

Mexican legislation in force and effect makes it illegal for

Mexican Government authorities to exclude a Mexican national from

Mexican territory, or for Mexican Government authorities to deport a

Mexican national from Mexican territory. Therefore Mexican

Government authorities have not entered, and could not enter, into

any special arrangement or agreement, either with the United States

or with any other country, to surrender its own national.

In the case of extradition treaties to which Mexico is a party,

the Government of Mexico has invariably and expressly reserved to

the parties the right to refuse requested extradition to one of their

Own respective nauionals, agreeing instead to prosecute them in their

Own national courts in the interest of justice.

(Emphasis added).

Petitioner would have this Court believe that the United

States and Mexico painstakingly negotiated this comprehensive

structure of mutual cooperation in criminal matters as an “optional

protocol”: a wholly optional mechanism, open to circumvention by

cither party at any time, even over the other party's express

objection. Petitioner further claims that forcible government-

sponsored kidnapping of an individual from the sovereign territory

of the other, over that party’s explicit protests, fully accords with

the treaty’s object and purpose. The treaty’s plain language,

structure, and negotiating and ratification histories all confirm the

District Court's opinion, affirmed by the Ninth Circuit, that

petitioner's reinterpretation "is absurd.” 745 F. Supp. 599, 610 (C.D.

Cal. 1990).

A. The Plain Language of the U.S.-Mexico Treaty

Establishes Mandatory Prosecute-or-Extradite

Procedures That Are Exclusive in All Cases Not

Involving Consensual Rendition.

The treaty’s plain language demonstrates the parties’ intent

to provide mandatory procedures governing the extradition of

persons in all cases not involving consensual rendition.* Articles |

and 2 create a duty to extradite for both territorial and

extraterritorial offenses and direct that "[e]xtradition shall take

place, subject to this Treaty, for willful acts which fail within any of

[the extraditable offenses listed in] the clauses of the Appendix...”

Id. art. 2 (emphasis added). Virtually all remaining articles employ

the mandatory term "shall" to differentiate those circumstances

*Consensual rendition” refers to the informal, voluntary surrender of a

person by one state to another without extradition procedures. Rendition

may involve cooperation between law enforcement agencies or use of

immigration jaws directly Or indirectly to accomplish a surrender. See M.

Cherif Bassiouni, International Extradition and the World Public Order 121-

124 (1974).

where extradition is required from those where each signatory

retains discretion to refuse to extradite an alleged criminal.”

Petitioner claims that it can simply ignore these mandatory

provisions by unilaterally abducting the individual sought, rather

than pursuing the carefully specified extradition procedure. Yet

such a reading would twist the clear import of the treaty by

reconstruing the mandatory words “shall” in these treaty provisions

“Extradition shall not be granted when the offense for which it is

requested is political or of a political character” (art. 5), when the person

sought has been prosecuted or has been tried and convicted or acquitted by

the requested Party (art. 6), or “when the prosecution or the enforcement of

the penalty for the offense...has become barred by lapse of time according to

the laws of the requesting or requested state (art. 7).” The remaining articles

similarly use mandatory language with regard to: requests (art. 10), additional

evidence (art. 12), procedure (art. 13), decision and surrender (art. 14), third-

party requests (art. 16), the rule of specialty (art. 17), surrender of property

(art. 19), transit (art. 20), expenses (art. 21), scope (art. 22), and ratification

and denunciation (art. 23).

Only a few provisions are worded in nonmandatory terms. Articles 8 and

9 of the treaty refer to circumstances where the obligation to extradite is

subject to the discretion of the requested party. Article 8 provides, "When the

offense...is punishable by death under the laws of the requesting Party and the

laws of the requested Party do not permit such punishment for that offense,

extradition may be refused...” Article 9 provides that the requested party may

deliver up its own nationals “if, in its discretion, it be deemed proper to do so,”

but "[i]f extradition is not granted, the requested party shall submit the case to

its competent authorities for purposes of prosecution .....” (emphasis added).

Similarly, the provisions regarding the extraordinary provisional arrest (art.

11), delayed surrender (art. 15), and summary extradition (art. 18) are

explicitly discreuonary.

to mean “may.” More fundamentally, petitioner's claim that these

provisions are not exclusive, but permit forcible governmental

kidnapping, would render many of these treaty provisions

meaningless. For example, the provisions requiring "sufficient"

evidence to grant extradition (art. 3), withholding extradition for

political or military offenses (art. 5), withholding extradition when

the person sought has already been tried (art. 6), witholding

extradition when the statute of limitations for the crime has lapsed

(art. 7), and granting the requested State discretion to refuse to

extradite an individual who would face the death penalty in the

requesting country (art. 8) would all serve no purpose if the

requesting state could simply ignore those restraints and kidnap the

sought-after individual.°

The extradition treaty is the exclusive means of surrendering

a Suspect in cases where there is possibility for disagreement

between the contracting states. That the signatories may mutually

® As the Ninth Circuit recognized in Verdugo, “[eJach of these provisions

would be utterly frustrated if a kidnapping were held to be a permissible

course of governmental conduct.” 939 F.2d at 1349.

agree to consensual informal rendition outside the provisions of the

treaty in no way authorizes forcible, state-sponsored abductions

without mutual consent. In this case, the Mexican government

publicly objected four times to the unilateral abduction by U.S.

agents of a Mexican national from Mexico. See Brief of

Respondent ("Resp. Br.") at 3-4. Those protests made any

rendition nonconsensual and remitted the parties to their two

treaty-based remedies: either Mexican prosecution (art. 9(2)) or

formal extradition in accordance with the treaty’s mandatory terms.

B. To Avoid the Treaty’s Mandatory Language, the

Justice Department Has Written a New Implied

Term into Article 9, Authorizing Forcible,

Unconsented Governmental Kidnapping.

The District Court found that lower-level Drug

Enforcement Administration (DEA) agents pursued a third, illegal

option: they forcibly kidnapped respondent Dr. Alvarez from

Mexican territory without Mexican governmental consent, in bald

violation of the treaty. See Appendix to Petition ("Pet. App.”) at

4a, 24a-25a. After Mexico repeatedly demanded respondent's

return, Justice Department lawyers sought to justify the DEA’s

action after the fact by claiming that the extradition treaty permits

unilateral abductions. By so arguing, the Department seeks, in

effect, to amend Article 9 of the treaty, which governs permissible

modes of surrendering nationals of the requested country.

When one country seeks surrender of a national of the

other, Article 9 requires the requested party either to extradite the

individual, or if extradition is not granted, "the requested Party shall

submit the case to its competent authorities for the purpose of

prosecution” (emphasis added). Had the Justice Department

complied with the treaty and filed an extradition request under

Article 9, Mexico would have been obliged either to extradite Dr.

Alvarez to the United States or to submit his case to competent

domestic authorities for prosecution.’ Mexican prosecutors and

courts are fully competent to prosecute and try Dr. Alvarez for the

"The latter course would have been more likely. Because, as petitioner

concedes, Mexican law prohibits the extradition of nationals except in

exceptional circumstances, “[t]o date, the government of Mexico has not

extradited a single Mexican national under the terms of the extradition treaty

pursuant to an extradition request by the United States.” JD Br. at 21, n.17.

territorial offenses with which he was charged. See Brief for the

United Mexican States as Amicus Curiae in support of Granting

Review ("Mexican Amicus Brief") at 6. By abducting Dr. Alvarez

from Mexico without its consent, lower executive officials in this

country denied Mexico its opportunity to exercise either of its

treaty options.

Petitioner charges that the District Court found "an implied

extradition-treaty obligation [thereby ignoring] the cardinal rule that

the courts are not free to rewrite the international agreements to

which this Nation is a party." JD Br. at 24-S. Yet ironically, it is

petitioner, and not the courts below, that seeks to rewrite the

treaty. Under petitioner's reinterpretation, Article 9 would contain

a new term, providing:

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 #, in its discretion, it be deemed

proper to do so.

2. If extradition is not granted pursuant to

paragraph 1 of this Article, the requested Party shall

submit the case to its competent authorities for the

purpose of prosecution, provided that Party has

jurisdiction over the offense.

3. Notwithstanding paragraphs 1 and 2 of this

Article, either Contracting Party can, without the

consent of the other Contracting Party, abduct

nationals from the territory of one Party for

prosecution in the territory of the other.

Having twice failed below to win judicial endorsement of

this novel rewriting, petitioner now asks this Court to revamp

Article 9 into “a license or charter for signatory nations to engage

in unlawful conduct in all those categories of cases in which the

treaty prohibits extradition.” Verdugo, 939 F.2d at 1351. Yet as

petitioner himself strenuously argues, such judicial amendments are

constitutionally forbidden.”

‘See JD Br. at 24 (citing The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71

(1821) (“to alter, amend, or to add to any treaty, by inserting any clause,

whether small or great, important or trivial, would be on our part an

usurpation of power, and not an exercise of judicial functions") and Maximov

vy. United States, 373 U.S. 49, 54 (1963) (“it is particularly inappropriate for a

court to sanction a deviation from the clear import of a solemn treaty...when

...there is no indication that application of the words of the treaty according to

their obvious meaning effects a result inconsistent with the intent or

expectations of the signatories.”)); see also JD Br. at 24 (citing Chan v.

Korean Air Lines, Ltd., 490 U.S. 122, 134-35 (1989); United States v. Stuart,

489 U.S. 353, 371-73 (1989) (Scalia, J., concurring in the judgment)); Trens

World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 283 (1984)

(Stevens, J., dissenting) ("The task of revising an international treaty is not

‘. The Negotiating and Ratification Histories of the

Treaty Confirm that Petitioner's New Implied Term

Violates the Treaty.

The negotiating and ratifying histories of Article 9 and the

extradition treaty as a whole fully support the plain language of that

article as written.” That history demonstrates that neither

negotiating party, nor the Senate that ratified the treaty, supported

the reinterpretation that petitioner now urges on this Court.

The primary purpose of the parties in negotiating the new

Treaty was to promote cooperation.’ As drafted, Article 9

y p P

Court has any authority to perform.”).

See United States v. Stuart, 489 U.S. 353, 366 (1989) ("Nontextual

sources . . . Often assist us in ‘giving effect to the intent of the Treaty parties,’

such as a treaty’s ratification history and its subsequent operation”) (citauon

omitted); id. at 406 n.7 (consideration and consultation of such materials as

Senate preratification debates and reports “is eminently reasonable.”). This

Court has regularly made reference to such materials. See, ¢.g.,

Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988); Societe Nauionale

Industrielle Aerospatiale v. U. S. Dist. Ct, 482 U.S. 522 (1987); Air France v.

Saks, 470 U.S. 392 (1985); Immigration and Naturalizauion Service v. Stevic,

467 U.S. 407 (1984); Trans World Airlines v. Franklin Mint Corp., 466 U.S.

243 (1984); Warren v. United States, 340 U.S. 523 (1951).

The new provisions of the Treaty would “make a significant contribution

to international cooperation in law enforcement.” Presidential Letter of

Transmittal attached to Senate Advice and Consent at 3. See also Preamble

to Extradition Treaty (the purpose of the treaty is “to cooperate more closely

in the fight against crime, and, to this end, to mutually render better assistance

iN matters of extradition’).

served that purpose by binding each party to a prosecute-or-

extradite obligation with regard to its own nationals. Precisely

because the parties understood the Mexican government's

reluctance to extradite its own nationals, Article 9 was drafted to

provide the requested state with the alternative of prosecution.

Nothing in the negotiating history suggests that the parties intended

simultaneously to allow the expedient third option that petitioner

now invokes: forcible, unconsented kidnapping of the treaty

partner's nationals over the party's express objection.!!

Nor does any evidence in the treaty’s ratification history

Suggest that the Senate intended to authorize forcible unconsented

. . ° . . 7

abduction of nationals of either country.’ To the contrary, such

' This interpretation “is not only apparent from the general principle that

the specific enumeration of certain matters and things implies the exclusion of

all others, but the entire face of the treaty, including the processes by which it

is to be carried into effect, confirms this view of the subject.” U.S. v. Rauscher

119 U.S. 407, 420 (1886). To construe the treaty to permit forcible, non-

consensual abductions would be inconsistent with its express purpose of

facilitating and increasing cooperation in the area of law enforcement. See

Preamble to the Extradition Treaty, quoted in supra note 10.

> . "- .

“Petitioner calls it "inconceivable that the President would have

negouated a treaty that overturns Ker [v. Illinois, 119 U.S. 436 (1886)] and

then submitted that treaty to Congress without any mention of the issue.” JD

Br. at 31. Because other briefs filed with this Court fully rebut petitioner's

an understanding would have rendered debates about the treaty’s

restrictions entirely superfluous. The presidential message

accompanying the treaty expressly recognized that:

The new U.S.-Mexico treaty would permit the U.S.

to extradite its own citizens, as does the old treaty.

Mexican law, however, prohibits the extradition of

Mexican nationals. The treaty thus obliges the

requested state, if it does not extradite its own

nationals, to submit the case to its competent

authorities for a decision as to prosecution, provided

that state has jurisdiction over the offense.

Presidential Message, Extradition Treaty Between the United States

and Mexico--Changes in the New Treaty at 19 (emphasis added).

The State Department Letter of Submittal attached to the Senate's

Advice and Consent similarly reflected that the treaty "takes into

account the law of Mexico prohibiting the extradition of its

Ker-Frisbie claims, we need not address them in great detail. See, ¢.g., Resp.

Br. at 33-45. Suffice it to say that the President did not mention Ker to

Congress--a case involving private kidnapping without Peruvian government

protest at a time when that government was occupied and incapable of

receiving an extradition request--because no one imagined that Ker authorized

governmental kidnappings in violation of a valid and ongoing extradition treaty

over the repeated protests of the treaty partner. Had the Mexican

government known that the executive planned to conduct forcible

governmental abductions notwithstanding the treaty, presumably it would have

protested, as it has consistently done since 1906. See, ¢.g., JD Br. at 28, n.23

(recounting the Mexican protest regarding the 1906 kidnapping of Antonio

Martinez).

_——_

nationals but allowing for their prosecution in Mexico for offenses

committed abroad.” See State Department Letter of Submittal

Attached to Senate Advice and Consent at 6.

Significantly, nothing in the ratification history suggests that

the executive and Senate entered the treaty intending to allow

Mexican officials to forcibly abduct United States citizens from our

territory without our consent to be brought to trial in Mexico. It is

inconceivable that the Senate would have endorsed this possibility

without discussion, had it understood Article 9 implicitly to offer

each government a kidnapping option.

In construing a treaty, a Court has the "responsibility to give

the specific words of the treaty a meaning consistent with the

shared expectations of the contracting parties.” Air France v. Saks,

470 U.S. 392, 399 (1985). The plain reading of the Treaty’s text

and structure, coupled with its negotiating and ratification histories,

confirms that Article 9's prosecute-or-extradite mandate was

intended to strengthen, not disrupt, cooperation between the

United States and Mexico in law enforcement.

Il. THIS COURT SHOULD NOT AUTHORIZE DE

FACTO AMENDMENT OF A TREATY BY LOWER

EXECUTIVE OFFICIALS WITHOUT

CONGRESSIONAL CONSULTATION OR CONSENT,

AND OVER THE REPEATED, UNEQUIVOCAL

OBJECTIONS OF OUR TREATY PARTNER.

The United States-Mexico extradition treaty was consented

to by the Senate and agreed to by Mexico. Having made that

treaty, the executive branch “is not [now] tree to treat a treaty as

though it meant something entirely different from what It says. . . .

The Constitution . . . give{s the] President power to ‘make Treaties’

cnly ‘by and with the advice and consent of the Senate.” Laurence

H. Tribe, American Constitutional Law, §4-5, at 225 (2d ed. 1988)

(citations omitted). The only extradition treaty that the President

was authorized to "make" was the treaty as it was then understood

by the Senate and our treaty partner."*

13.45 Professor Louis Henkin has noted:

The principle that the President can only make a treaty as it

is understood by the Senate would govern even if the Senate

had given no indication of its understanding of the treaty. In

that event, it must be assumed . . . that the Senate

understood the treaty to mean what it would be understood

10 mean by reasonable people, reading the text of the treaty

in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in light

of their object and purpose. .. .. That interpretation,

By seizing Dr. Alvarez and others,'* DEA officials ignored

mandatory language in the U.S.-Mexico Extradition Treaty, and

introduced new language into Article 9. Justice Department

lawyers now invite this Court to endorse this novel reinterpretation.

The courts below correctly rejected that invitation, relying upon the

treaty’s clear language and purposes, the intent and expectations of

the Mexican Government,'* and the understanding of the

executive and the Senate upon ratifying the treaty.

To allow lower executive officials to perform such a post

hoe unilateral reinterpretation of this treaty would strike at the

therefore, is the interpretation which the President must

adopt for the United States.

The ABM Treaty and the Constitution: Joint Hearings Before the Senate

Comm. on Foreign Relations and the Senate Comm. on the Judiciary, 100th

Cong., Ist Sess. 82 (1987) (hereinafter ABM Hearings).

+The kidnapping of Dr. Alvarez was not an isolated incident. See also

United States v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir. 1991), petition for

cert. pending, No. 91-670 (involving seizure of Mexican national on Mexican

soul by Mexican police officers, at the behest of DEA agents).

'SThe Mexican Government's intent is amply demonstrated by its

continuing protests against respondent's forcible abduction. See Mexican

Amicus Brief at 10.

heart of our separation of powers.'° For such reinterpretations

amount to de facto amendment of the treaty without the

consultation and consent of the Senate or our treaty partner, in

contravention of the treaty-making procedures detailed in Article I]

of the Constitution.!’ "If, following ratification, the Executive

could unilaterally change the meaning of a treaty as it had been

presented to the Senate, the careful consideration the Senate gives

to treaty language, purposes, and effect, would stand in constant

peril of nullification by reinterpretation by Executive officials, high

or low." Rainbow Navigation v. Department of the Navy, 699 F.

Supp. 339, 343 (D.D.C. 1988) (H. Greene, J.), rev'd on other

grounds, 911 F.2d 797 (D.C. Cir. 1990).

The final authority to interpret a treaty rests not with the

executive, but with the judiciary. See Japan Whaling Ass'n v.

16Ujnilateral executive reinterpretation of a treaty constitutes “an offensive

against the separation of powers and an assault on the Senate’s

constitutionally specified role in the treatymaking process.” ABM Hearings,

supra note 13, at 83 (testimony of Laurence H. Tribe).

7 article II provides that the President “shall have the Power, by and with

the Advice and Consent of the Senate to make Treaties, provided two thirds

of the Senators present concur.” U.S. Const., art. II, § 2, cl. 2.

American Cetacean Soc’y, 478 U.S. 221, 230 (1986) ("the courts

have the authority to construe treaties and executive agreements"):

Sumitomo Shoji America v. Avagliano, 457 U.S. 176 (1982). This

Court can and must bar lower executive officials from reinterpreting

the treaty to make it wholly different from the treaty which the

parties negotiated and to which the Senate advised and consented.

A. This Court Should Not Sanction a Treaty

Amendment Effected by Lower Executive Officials

Without Congressional Consultation or Consent.

This case represents a sharp break in the executive's

interpretation of the U.S.-Mexico extradition treaties. Until this

case, the executive consistently interpreted extradition treaties to

preclude kidnapping and forced abduction. As early as 1881,

Secretary of State Blaine stated that the U.S.-Mexico extradition

treaty "does not authorize either party, for any case, to deviate from

[its] forms or arbitrarily [to] abduct from the territory of one party a

person charged with a crime, for trial within the jurisdiction of the

other.” See Letter from Secretary of State James Blaine to O.R.

Roberts, Governor of Texas (May 3, 1881), in Domestic Letters of

the Department of State, 1784-1906. In 1887, Secretary of State

Bayard confirmed that abductions constitute a clear violation of the

U.S.-Mexico extradition treaty. See Letter from Secretary of State

T.F. Bayard to Thomas C. Manning (February 26, 1987), in

Diplomatic Instructions of the Department of State, 1801-1906.

Almost a century later, the executive branch reatfirmed its

Opposition to transborder abductions in Secretary of State George

Schultz's exchange of notes with Canada agreeing to act to deter

such abductions. See United States v. Verdugo-Urquidez, 939 F.2d

1341, 1353-54 (9th Cir. 1991). In 1986, then-State Department

Legal Adviser Abraham Sofaer testified that "seizure by US.

officials of terrorist suspects abroad [might be] incompatible with

the bilateral extradition treaties that we have in force with [other]

nations.” Bills to Authorize Prosecution of Terrorists and Others

Who Attack U.S. Government Employees and Citizens Abroad:

Hearings on S. 1429 Before the Subcomm. on Security and

Terrorism of the Senate Comm. on the Judiciary, 99th Cong., Ist

Sess. 63 (1985). As recently as 1989, Mr. Sofaer told Congress that

[forcible abductions from a foreign state clearly violate this

principle” requiring respect for foreign sovereignty. Oversight

earing on FBI Authority to Seize Suspects Abroad Before the

Subcomm. on Civil and Constitutional Rights of the House

Judiciary Comm., 100th Cong., Ist Sess. 6 (1989) (statement of

Abraham Sofaer, State Department Legal Adviser).

The Government of Mexico has long held the same

understanding of the extradition treaty. Indeed, as noted above,

Mexico could not agree to the reinterpretation the executive now

Suggests, because Mexican law forbids its governmental authorities

from entering explicit or implicit agreements to surrender their own

nationals to foreign governments.!*

"When the parties to a treaty both agree as to the meaning

of a treaty provision, and that interpretation follows from the clear

treaty language, [this Court] must, absent extraordinarily strong

'SSee supra note 3; JD Br. at 28, n.26 (recounting Mexican protest of

U.S. abduction of Antonio Martinez in 1906).

contrary evidence, defer to that interpretation.” Sumitomo Shoji

America v. Avagliano, 457 U.S. 176, 185 (1982). Yet the Justice

Department would now reverse the prevailing interpretation of

extradition treaties to include an implied term allowing forcible

abductions from a treaty partner's territory.

This Court owes no deference to the Department’s newly

minted reinterpretation.” That reinterpretation runs flatly

contrary to the interpretation of the treaty presented to the Senate

during the ratification process.” The chronology of this case

l9cr. Perkins v. Elg, 307 U.S. 325 (1939) (construing bilateral

naturalization treaty in accordance with the historical construction and

refusing to defer to change in executive branch policy); Johnson v. Browne,

205 U.S. 309 (1907) (rejecting executive's interpretation of U.S.-U.K.

extradition treaty to mean that person can be surrendered for one offense and

punished for another); Rainbow Navigation v. Department of the Navy, 699 F.

Supp. 339 (D.D.C. 1988), rev'd on other grounds, 911 F.2d 797 (D.C. Cir.

1990) (rejecting executive's reinterpretation of U.S.-Iceland Defense Treaty).

“0in a similar case, Rainbow Navigation v. Department of the Navy, 699

F. Supp. 339 (D.D.C. 1988), rev’d on other grounds, 911 F.2d 797 (D.C. Cir.

1990), the district court rejected the Department of the Navy's

reinterpretation of the U.S.-Iceland Defense Treaty in favor of the original

interpretation of the treaty. After examining executive representations to the

Senate during the advice-and-consent period, Judge Harold Greene had

no doubt about the obligation of the Executive Branch to

stand behind the representations made by iis officials to the

Senate committee .. . and to comply with the conditions

attached, formally or informally, by the Senate as part of its

. 30

strongly suggests that DEA agents effected the seizure of Dr.

Alvarez in simple disregard of the bilateral extradition treaty, and

that the executive's lawyers manufactured their treaty

reinterpretation to provide a post hoc justification.”! After

supporting the Justice Department below, the State Department

has failed to join the Solicitor General's brief. rendering the

ratification. Any other rule would undermine the authority

of the Senate under Article 2 section 2 of the Consutution

to concur or fail to concur in treaties... .

Id. at 343. Judge Greene determined that the Senate had relied upon

executive representations that the existing U.S. military cargo service

(Rainbow) would not be disadvantaged as a result of the treaty, thus rendering

subsequent disadvantageous changes introduced by the Navy into the

competition procedures an unlawful reinterpretation of the treaty. On appeal,

the D.C. Circuit concluded that the treaty applied to U.S.-flag service

generally, not Rainbow in particular, and that the 1988 Navy rules did not, in

fact, depart from the Navy’s previous interpretation, but did not question the

district court's analysis of the invalidity of unilateral executive

reinterpretations.

*ISee Pet. App. at 6a-13a, 24a-2Sa. As the Ninth Circuit noted in

Verdugo, 939 F.2d at 1353, the Legal Adviser’s "views [in this case, discussed

infra, note 22] appear to have been adopted Only with an eye toward the

Current litgation.” This Court has given little credence to a party’s position

where it constitutes "no more than statements of a litigating position.” Alfred

Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682. 693 (1976)

(quoting counsel's brief). Cf. Securities Industry Association v. Board of

Governors of the Federal Reserve Svstem, 468 U.S. 137, 143 (1984) (“agency

interpretations of a statute are to be given deference Only if the interpretation

is One stated by the agency and not merely by the litigating attorney in the

context of a lawsuit").

executive branch’s views "on the subject before us . . . unclear or

ambivalent.” Verdugo, 939 F.2d at 1354.**

Yet even assuming that the Justice Department's treaty

reinterpretation now constitutes the official executive reading, the

Constitution bars the executive branch from reinterpreting the

treaty without the advice and consent of the Senate. As the Senate

Foreign Relations Committee recently noted, "when the President

acts beyond the scope ot his constitutional authority to interpret a

treaty, he is in effect either amending that treaty or making a new

one ... [Each such act requires the advice and consent of the

Senate.” S. Rep. No. 164, 100th Cong., Ist Sess. 42 (1987). Not

22The Ninth Circuit correctly declined to defer to a letter from the State

Department Legal Adviser, produced on appeal for the purpose of related

litigation, on the ground that the court had no doubts regarding the treaty’s

unambiguous meaning and that the predecessor Secretary of State and Legal

Adviser had both adhered to the prevailing treaty interpretation. Verdugo,

939 F.2d at 1353-54. In any event, this Court has never blindly deferred to

State Department legal interpretations. See, ¢.2., W.S. Kirkpatrick, Inc. v.

Environmental Tectonics Corp., 493 U.S. 400, 408-09 (1990) (refusing to

adopt position urged by State Department Legal Adviser in the district court,

which was found persuasive by the court of appeals); Chan v. Korean Airlines,

490 U.S. 122 (1989) (rejecting Department’s interpretation of Warsaw

Convention); Wardair Canada v. Florida Dep't of Revenue, 477 U.S. 1 (1986)

(rejecting executive's interpretauon of aviauon treaty); First Nat'l City Bank v.

Banco Nacional de Cuba, 406 U.S. 759 (1972) (six Justices reject claim of

absolute judicial deference to executive branch in act of state cases).

only did lower executive officials fail to follow their constitutional

duty to present this new treaty to the Senate; the Senate would not

have accepted the implied term because it violates the central

purposes of the extradition treaty. See Part III, infra.

B. This Court Should Not Sanction a Treaty

Amendment Effected by Lower Executive Officials

Over the Repeated, Unequivoca! Objections of Our

Treaty Partner.

The de facto amendment attempted here becomes

particularly egregious in view of our treaty partner's repeated and

vociferous rejection of it. One contracting party to a treaty cannot

change the terms of the treaty by itself, over its partner's

objections.** Furthermore, this Court recognized that

[t}here is something . . . which shocks the conscience

in the idea that a treaty can be put forth as

See American Law Institute, 1 Restatement (Third) of Foreign

Relations Law of the United States § 334(1), at 213 (1987) (hereinafter

Restatement (Third) ("An international agreement may be amended by

agreement between the parties.”) (emphasis added); Vienna Convention on

the Law of Treaties, opened for signature, May 23, 1969, Art. 39, 40, U.N.

Doc. A/Conf.39/27 (1969), reprinted in 8 I.L.M. 679 (1969) (hereinafter

"Vienna Convention’).

embodying the terms of an arrangement with a

foreign power . . . a material provision of which is

unknown to one of the contracting parties, and is

kept in the background to be used by the other only

when the exigencies of a particular case may demand

it.

New York Indians v. United States, 170 U.S. 1, 23 (1898). Former

Legal Adviser Abraham Sofaer has recently argued that, when

interpreting treaties, "a President should act only in good faith and

should . . . avoid changing established and accepted norms."

Abraham D. Sofaer, Treaty Interpretation: A Comment, 137 U.

Pa. L. Rev. 1437, 1448 (1989).** As petitioner notes, the United

*4The Rapporteur of the Special Working Committee on Legal Aspects

of Current Issues of Arms Control and Disarmament Policy of the American

Society of International Law has recently delineated an eight-factor test to

determine the appropriate interpretation of a treaty: what the Senate said

when providing advice and consent, what was said to the Senate by the

executive branch prior to ratification to create an understanding of the treaty,

the attitude of the other party to competing treaty interpretations, how much

support there is in the treaty text and record for the two interpretations, the

record of subsequent practice of the treaty parties; how different the new

interpretation is from the old; whether the new interpretation purports to

create new obligations; and whether there are any changed circumstances that

affect the treaty. See David A. Koplow, Constitutional Bait and Switch:

Executive Reinterpretation of Arms Control Treaties, 137 U. Pa. L. Rev.

1353, 1418-25 (1989). In this case, these factors overwhelmingly favor the

prevailing interpretation of the extradition treaty: neither the Senate nor

Mexico contemplated that forcible abduction would be a permissible means for

obtaining jurisdiction over a national of the other state; the executive's

representations are consistent with the prevailing interpretation, Mexico has

States is currently a "party to more than 100 extradition treaties.

some of which are more than a century old." and some of which

draw verbatim from the text of the U.S.-Mexico accord. JD Br. at

27. If petitioner's reading is correct, all of these extradition treaties

could be reconstrued to permit forcible extraterritorial abductions

over the objections of the treaty partner.** Under petitioner's

reading, our treaty partners could invoke such a reinterpretation to

forcibly abduct U.S. nationals on U.S. soil, over our government's

repeated and vociferous objections. This Court should not sanction

such a chaotic and lawless result.

strongly objected to the reinterpretation; the text and record provide no

support for the permissibility of forcible abduction: a practice of unconsented

forcible abductions would dramatically disrupt the prevailing practice of

consensual extraditions and renditions; the new interpretation amends existing

obligations; and no evidence exists that circumstances have substantially

changed since the treaty was entered.

SEleven of our current extradition treaties have provisions similar to

Article 9. See Resp. Br. at 12, n.6 (listing treaties). Ata minimum,

petitioner's argument would also purport to read an implied kidnapping term

into those treaties as well. Significantly, both Canada and Mexico, our

contiguous neighbors most likely to be adversely affected by petitioner's

reinterpretation, have filed amicus briefs urging affirmance of the Ninth

Circuit's ruling. .

III. THIS COURT SHOULD NOT SANCTION AN

EXECUTIVE REINTERPRETATION OF A TREATY

THAT NULLIFIES THE TREATY BY VIOLATING

THE NORMS OF INTERNATIONAL LAW THAT

GAVE IT RISE.

Even if lower executive officials could unilaterally

reinterpret a treaty, they should not be able to reinterpret that

treaty so as to fundamentally violate the norms of customary

international law that shape its object and purpose. The parties

negotiated this treaty to avoid fractious disputes, to protect

territorial sovereignty from forcible intrusions, and to protect

individual suspects from arbitrary arrests and detentions. By

reinterpreting the treaty, petitioner has provoked precisely the kind

of contentious dispute, territorial invasion, and arbitrary arrest that

the treaty was designed to prevent. If executive officers can turn

the treaty on its head, and reinterpret it to mean the very opposite

of the parties’ original intent, they will have arrogated to

themselves the power not just of unilateral treaty amendment, but

of unilateral treaty nullification.”°

A. This Court Must Construe the Extradition Treaty in

Accordance With [ts Object and Purpose and Well-

Settled Rules of International Law.

Petitioner claims that the absence in the extradition treaty

of any language expressly forbidding the signatories from making

arrests in each other’s territory effectively authorizes forcible state-

sponsored abductions. Yet treaty construction cannot transpire in a

vacuum, in which established international-law rules and centuries

of historical practice are simply ignored.

This Court has long recognized that “an act of congress

Ought never to be construed to violate the law of nations if any

other possible construction remains....". Murray v, Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also US. vy.

>In Goldwater v. Carter, this Court declined to review, on justiciability

grounds, presidential termination of a bilateral treaty in accordance with its

terms. See 444 U.S. 996 (1979) (one Justice concluding that the case was not

ripe and four Justices concluding that it presented a political question). But

this Court has never sanctioned nullification of a treaty by lower executive

actors in a Manner nowhere contemplated by the treaty itself.

PLO, 695 F. Supp. 1456, 1464-65 (S.D.N.Y. 1988). That

interpretive principle applies with even greater force with regard to

the construction of treaties, which generally arise through the

formalization or codification of preexisting norms of customary

international low.

The Vienna Convention on the Law of Treaties provides a

general rule of treaty interpretation:

There shall be taken into account together with the

context: .. . (c) any relevant rules of international

law applicable in the relations between the parties.

Vienna Convention, supra note 23, art. 31(3) (emphasis added).”’

This rule, known as the principle of consistency, makes clear “that

the contracting parties [to a treaty] intend something reasonable

and something not inconsistent with generally recognized principles

of International Law.” Lassa Oppenheim, International Law 952

(H. Lauterpacht ed., 8th ed.) (footnotes omitted). "In accordance

with the principle of consistency, treaties should be interpreted in

*'The State Department has stated that “the convention bs already

recognized as the authoritative guide to current treaty law and practice.” S.

Exec. Doc. L, 92d Cong., Ist Sess. 1 (1971).

the light of existing international law.” Joseph G. Starke, An

Introduction to International Law 480 (10th ed. 1989). United

States courts have regularly applied this principle in extradition

cases. See, e.g., United States v. Rauscher, 119 U.S. 407, 429

(1886) (construing Webster-Ashburton Treaty consistently with

Customary international law).

The Vienna Convention further specifies that

A treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to

the terms of the treaty in their context and in the

light of its object and purpose.

Vienna Convention, Art. 31(1) (emphasis added). That principle

has been adopted virtually verbatim in Section 325 of the

Restatement (Third), supra note 23, and is regularly applied by

federal courts. See, e.g., Day v. Trans World Airlines, 528 F.2d 31.

33 (2d Cir. 1975) (applying Vienna Convention rule in interpreting

multilateral treaty).

Thus, the question whether the extradition treaty between

the United States and Mexico permits unconsented, forcible State-

sponsored abductions must be considered in light of both the

international law norms that gave rise to the treaty and the treaty’s

broader object and purpose.

B. Forcible, Unconsented, State-Sponsored Abductions

Defeat the Object and Purpose of an Extradition

Treaty and Violate Settled Rules of Both Customary

and Conventional International Law

This Court has long recognized the sanctity of state

sovereignty as perhaps the most fundamental principle of

international law. “The jurisdiction of the nation within its own

territory is necessarily exclusive and absolute. ... All exceptions

[to such absolute jurisdiction] must be traced up to the consent of

the nation itself.". Schooner Exchange v. McFaddon, 11 U.S. (7

Cranch) 116, 136 (1812); see also Societe Nationale Industrielle

Aerospatiale v. U.S. Dist. Court, 482 U.S. 522, 557 n.12 (1987).

Thus, "the first and foremost restriction imposed by international

law upon a State is that--failing the existence of a permissive rule to

the contrary--it may not exercise its power in any form in the

territory of another State.” See The S.S. Lotus, P.C.I.J., (ser. A)

No. 10, at 18 (1927) (emphasis added). This central norm of

customary international law has been codified in numerous treaties

to which both Mexico and the United States are parties.

Forcible, state-sponsored abduction of a national from his

own country violates the international norm of territorial

sovereignty, and breaches core norms of Customary international

law’? and binding treaties.” Such abductions not only offend

8The U.N. Charter provides that

All Members shall refrain in their international relations

from the threat or use of force against the territorial

integrity or political independence of any state... .

U.N. Charter art. 2, para. 4. Similarly, article 17 of the Charter of the

Organization of American States provides in even more stringent terms:

The territory of a State is inviolable: it may not be the

object, even temporarily, of military occupation or of other

measures of force taken by another State, directly or

indirectly, On any grounds whatever...

Charter of the Organization of American States, done at Bogota April 30,

1948, entered into force Dec. 13, 1951, 2 U.S.T. 2394, T.LA.S. No. 2361, 119

U.N.T.S. Protocol of Amendment, done at Buenos Aires, Feb. 27, 1967,

entered into force, Feb. 27, 1970, 21 U.S.T. 607, T.LAS. No. 6847.

Moy, State must not perform acts of sovereignty in the territory of

another State.” 1 Lassa Oppenheim, International Law 295 (H. Lauterpacht

ed., 8th ed.) (1955). "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.” Id. n.1. “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.”

Restatement (Third), Supra note 23, § 432(2) at 329.

state sovereignty, but also international human rights norms

expressed in international declarations and convenants.*! These

United States courts have held that forcible abductions of fugitives by

U.S. agents violate both the U.N. and O.A.S. Charters, unless the other state

consents or acquiesces. United States ex. rel. Lujan v. Gengler, 510 F.2d 62,

66-68 (2d Cir. 1975); United States v. Toscanino, 500 F.2d 267, 277 (2d Cir.

1974). Responding to Israel's kidnapping of former Nazi Adolph Eichmann

from Argentina, the Security Council construed Article 2(4) of the United

Nations Charter to prohibit forcible abduction without consent or

acquiescence by the asylum state. See U.N. Security Council Resolution 138,

15 U.N. SCOR, U.N. Doc. $/4349, Resolutions and Decisions at 4 (June 23,

1960).

31The Universal Declaration of Human Rights, for example, provides that

"[n]o one shall be subjected to arbitrary arrest, detention, or exile.” Art. 9,

G.A. Res. 217A (Ill), U.N. Doc. A/810, at 71 (1948). Article 9(1) of the

International Covenant on Civil and Political Rights similarly declares that

"[njo one shall be deprived of his liberty except on such grounds and in

accordance with such procedure as are established by law.” Dec. 16, 1966, 999

U.N.T.S. 171, reprinted in 6 I.L.M. 368 (1967). The Human Rights

Committee established under the Optional Protocol to the Covenant has held

that abduction of a Uruguayan refugee from Argentina by Uruguayan agents

constituted a violation of article 9 and that Uruguay was therefore required to

provide an effective remedy, including immediate release of the refugee with

permission to return to Argentina. See Views of the Human Rights :

Committee on the Complaint of Lopez, July 29, 1981, 36 U.N. GAOR Supp.

(No. 40) at 176-184, U.N. Doc. A/36/40 (1981). The Inter-American

Convention on Human Rights also forbids arbitrary arrest, art. 7(3), and

provides that "[n]o one shall be deprived of his physical liberty except for the

reasons and under the conditions established beforehand by the constitution of

the State party concerned or by a law established pursuant thereto.” The

Inter-American Convention on Human Rights, Art. 7(2), Nov. 22 1969,

O.AS. Official Records Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (Jan. 7,

1970).

norms define respondent's rights and provide the background

against which this Court must interpret the extradition treaty.

Extradition treaties reinforce these norms because they exist

precisely to protect territorial sovereignty and individual freedom

from arbitrary detention. They serve the Over-arching purpose of

preventing international conflict by providing agreed-upon standards

whereby parties may cooperate to avoid retaliatory invasions of

territorial sovereignty.”

Petitioner ignores the extradition treaty’s broad purposes of

reducing interstate conflicts, protecting territorial sovereignty, and

minimizing arbitrary detentions. Instead, petitioner maintains that

extradition treaties serve only the narrow purpose of imposing

“obligations on the contracting parties to surrender criminal

Absent a treaty, the principle of territorial sovereignty gives each nation

the unqualified right to Provide asylum to anyone within its territory. Jaffe v.

Smith, 825 F.2d 304, 306 (11th Cir. 1987). Before the proliferation of

extradition treaties during the nineteenth century, European states commonly

granted asylum to fugitives from other States, with the result that

a sovereign could enforce the return of fugitives only by

force of arms. ... Extradition as an inducement to peaceful

relations and friendly cooperation between states remained

of little practical significance until after World War I.

M. Cherif Bassiouni, Supra note 4, at 6,

fugitives."*? JD Br. at 14. But were this the treaty’s sole object

and purpose, there would be no explanation for its articles that

serve to safeguard fugitives’ rights and sovereign prerogatives, even

where those interests inhibit the prosecution of crime.“

The object and purpose of reducing conflict by promoting

cooperation explains why extradition treaties do not prohibit

informal consensual rendition of fugitives, but do prohibit state-

sponsored abductions. When a state delivers a fugitive to another

by informal rendition, it waives whatever treaty rights it may have

33Petitioner must take such a narrow view of the extradition treaty’s

purpose, because even a slightly broader view--that they are designed to

protect territorial sovereignty, facilitate law enforcement, and protect suspects’

rights--compels the conclusion that the DEA agents who arranged Dr.

Alvarez’s abduction themselves committed serious crimes (kidnapping,

abduction, and false imprisonment) that are extraditable under the U.S.-

Mexico treaty. See Treaty appendix, cl. 4, reprinted in J.A. at 85. See also

Requests of the United Mexican States to the United States for the

provisional detention of DEA Special Agent Hector Berrellez, J.A. at 53

(seeking DEA agent’s extradition under treaty).

See, e.g., United States-Mexico Treaty provisions barring double

jeopardy (art. 6), limiting extradition to a specific list of serious crimes (art. 2),

permitting either nation to refuse to extradite its own citizens regardless of

their crimes (art. 9), and prohibiting extradition for political offenses (art. 5).

These articles do not make the treaty more effective as a weapon in the fight

against crime; they serve the larger purposes of protecting suspects in one

state from arbitrary proceedings in the other and controlling controversies

between the signatories over the surrender of fugitives.

to grant asylum or to provide the fugitive with the safeguards of the

extradition process. But such a rendition, whether motivated by

comity, good will, or mutual convenience,” in no sense offends

the fundamental purpose of extradition treaties: to forestall

international conflicts. Extradition treaties have never been held to

exclude informal delivery of fugitives by one state to another.

because when one state willingly surrenders a fugitive, there is no

international dispute to prevent or control.”

351n 1823, Chief Justice Tilgman of Pennsylvania recognized that, absent

treaty-based standards, requests for delivery of fugitives pose a danger to

peaceful relations. In the absence of a treaty, he noted one nation could ask

another to deliver a fugitive “as a matter of courtesy, good will, and mutual

convenience. But a refusal to grant such a request is no just cause for war.”

Commonwealth v. Deacon, 10 Sery. & Rawle 125, 131 (1823). This Court

has similarly distinguished interstate abductions, of the kind that it permitted

in Frisbie v. Collins, 342 U.S. 519 (1952), from international abductions like

the one challenged here, on the ground that states, unlike sovereign nations,

“cannot declare war or authorize reprisals On other States.” Mahon v. Justice,

127 U.S. 700, 705 (1888).

See, ¢. g., United States v. Valot, 625 F.2d 308, 310 (9th Cir. 1980)

(informal surrender of fugitive does not violate extradition treaty); United

States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975 ) (same);

Restatement (Third), supra note 23, § 475, reporters’ note 6, at 566 (citing

cases). Even when states agree, however, "if the disguised extradition involves

unconscionable conduct [offending individual rights], considerations of due

process and human rights may lead to discharge of the accused.” Id.

Forcible, unconsented, state-sponsored abductions, by

contrast, violate the fundamental object and purpose of extradition

treaties. By circumventing a state's treaty rights and invading

territorial sovereignty, they provoke precisely the kind of

international dispute that extradition treaties were designed to

prevent.”’ Moreover, they undermine the goal of minimizing

arbitrary arrests and detentions in order to facilitate criminal

prosecutions at all costs.*

37Following the abduction of Adolph Eichmann from Argentina, for

example, the United Nations Security Council declared that such abductions

involve a breach of the principles upon which international order ts founded,

creating an atmosphere of insecurity and distrust incompatible with the

preservation of peace. See U.N. Security Council Resolution 138, 15 U.N.

SCOR. U.N. Doc. $/4349, Resolutions and Decisions at 4 (June 23, 1960).

BT justify extending the Ker-Frisbie rule to this case, petitioner

reiterates that foreclosing respondent’s U.S. prosecution is “too high a price

for society to pay” for an unlawful arrest. JD Br. at 8, 17. Yet petitioner _

weighs in the balance only the price of lost United States prosecutions, simply

ignoring the countervailing costs that forcible abductions inflict upon

international cooperation, territorial sovereignty, respondent's right to be free

from arbitrary arrest, and forgone Mexican prosecutions. Petitioner overlooks

that the Ker-Frisbie rule developed in the context of interstate abductions,

which necessarily impose fewer costs On society because states of the umon

cannot “authorize reprisals on other states,” Mahon v. Justice, 127 U.S. 700,

705 (1888), but can effectively prosecute agents of sister states who abduct

their citizens.

C. No Serious Dispute Exists Regarding Respondent's

"Standing" to Raise the Treaty Violation.

If the state whose sovereignty has been violated protests the

violation of its treaty rights and demands the abductee’s return, as

Mexico has repeatedly done here, a court may not ignore its protest

and try the abductee without condoning and perpetuating the treaty

violation. Even if the extraditing state waives its treaty rights, U.S.

courts have held that a kidnapped defendant can assert the

violation of an extradition treaty--which offends not just his

countrys rights, but his personal right to be free from arbitrary

arrest and detention--to defeat the court's jurisdiction.>? When a

state unambiguously demands its national’s return, it becomes even

See, e.g. United States v. Rauscher, 119 U.S. 407 (1886) (defendant

delivered pursuant to an extradition order or its equivalent has standing to

challenge a violation of that order without having to prove that the extraditing

state objects); United States v. Therion, 813 F.2d 146, 151 n.5 (8th Cir. 1987)

("[t}he government’s argument that Therion lacked standing to complain of a

violation of the treaty is without merit"); United States v. Najohn, 785 F.2d

1420, 1422 (9th Cir.) (per curiam) ("the person extradited may raise whatever

objections the rendering country may have"), cert. denied, 479 U.S. 1009

(1986); United States v. Vreeken, 603 F. Supp. 715, 717 (D. Utah 1984) ("the

defendant can successfully challenge the court's jurisdiction over his person if

he is before the court in violation of an international treaty”), aff'd, 803 F.2d

1085 (10th Cir. 1986), cert. denied, 479 U.S. 1067 (1987),

clearer that the national may invoke the extradition treatyand his

nation’s demand to defeat the court's jurisdiction.*”

Petitioner’s claim that only Mexico, and not Dr. Alvarez,

has "standing" to raise the treaty violation is therefore meritless.

See generally ins Br. at 46-53. This case has nothing to do with

“standing,” in the traditional sense that a civi! plaintiff must show

injury in fact, causation, and redressability sufficient to satisfy the

1.7!

"case or controversy” requirement of Article II United States

courts have regularly granted relief to criminal defendants, such as

See, ¢.g., United States v. Toscanino, 500 F.2d 267, 275, 277 (2d Cir.

1974) (barring the court’s acquisition of power over the person of a suspect

"kidnapped and forcibiy brought within the jurisdiction,” "in violation of

international treaties of the United States" when the court’s “acquisition of

power over his person represents the fruits of the government's exploitation of

its own misconduct”); U.S. ex rel Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.

1974), cert. denied, 421 U.S. 1001 (1975) ("hold[ing] only that given Lujan’s

failure to allege that Argentina or Bolivia protested his abduction . . . there is

no justification for ordering the district court to divest itself of jurisdiction

over him"); Restatement (Third), supra note 23, § 432, comment c, at 329-30

(“If the unauthorized action includes abduction of a person, the state from

which the person was abducted may demand return of the person, and

international law requires that he be returned.”) (emphasis added); id.,

reporters’ note 2, at 331 (the proposition that “only states, and not individuals,

May raise Objections to violations of internauonal law” has “been largely

abandoned as [a] general principl{[e] . . .”).

4 See generally William A. Fletcher, The Structure of Standing, 98 Yale

L.J. 221 (1988).

respondent, ~ are threatened with prosecution in violation of the

terms of an extradition treaty.** Moreover, this Court has long

recognized that even civil plaintiffs may directly invoke treaties of

friendship, commerce and navigation, which similarly confer rights

upon both States and individuals, and from which American

extradition treaties historically derive.*?

Dr. Alvarez may invoke the extradition treaty in his defense

in precisely the same way that any criminal defendant may invoke

the doctrine of federal preemption or jurisdictional limits in the

federal statute under which he is being prosecuted. As in such

cases, he may invoke the treaty not because "it grants him Standing,"

Sec, e.g. U.S. v. Rauscher, 119 U.S. 407 (1886); Valentine v. United

States ex rel. Neidecker, 299 U.S. § (1936).

See, ¢.g., Asakura v. City of Seattle, 265 U.S. 332 (1924) (enforcing

U.S.-Japan Friendship, Commerce, and Navigation treaty at the request of an

individual). "Such extradition Provisions as did exist [in early treaties} were

included only incidentally in treaties of peace and alliance, in which the

willingness to deliver up the criminals of the other party was just one of a

number of gestures of friendship and cooperation.” |, Shearer, Extradition in

. International Law 6 (1971). Indeed, the earliest American treaty to provide

for extradition, the Jay Treaty of 1794, was Just such a treaty of amity,

commerce, and navigation, containing an agreement to extradite in article 27.

See 1 W. Malloy, Treaties. Conventions, International Acts. Protocols and

Agreements between the United States of America and Other Powers (1776-

1909), at 590 (1910).

but because under Article VI, cl. 2 of the Constitution, the treaty is

the "supreme Law of the Land,” and acts as a self-executing

limitation upon unlawful government action.

D. No United States Court Has Ever Tried an Illegally

Kidnapped Foreign National, Brought Here In

Violation of a Valid Extradition Treaty, Over the

Treaty Partner's Repeated Protests.

Before the Ninth Circuit in Verdugo,

petitioner conceded that

in no reported case has a court held that officially

authorized or sponsored kidnapping did not violate

an extradition treaty when the country from which

the defendant was kidnapped objected to the

abduction.

United States v. Verdugo-Urquidez, 939 F.2d 1341, 1346 (9th Cir.

1991). Petitioner now claims that the issue has not arisen before

because no defendant has ever successfully claimed forcible

abduction from another jurisdiction as a defense in criminal

proceedings. Petition in United States v. Verdugo-Urquidez, No.

91-670 at 8. In reality, the issue has never arisen because the

United States has never before made a practice of disregarding

extradition treaties and trying suspects whom it has kidnapped.**

Petitioner reasons that the U.S.-Mexico extradition treaty

silently authorized forcible abductions. because it did not expressly

forbid them. But the treaty’s silence regarding state-sponsored

kidnapping resulted from the Parties’ contemporaneous

understanding that international law prohibited one sovereign from

forcibly violating the territory of another. The treaty also does not

expressly forbid the United States from entering Mexico and

summarily executing criminal Suspects. But as with forcible

“Those nations which have seized fugitives in violation of another

nation’s territory have usually returned the fugitive upon the other state’s

demand. See Restatement (Third), supra note 23, § 432 and reporters’ note 3

("Under prevailing practice .. . states Ordinarily refrain from trying persons

illegally brought from another state . ... if that state demands the person's

return."). In 1872, for example, the Attorney General ordered the release and

dismissal of charges against Rufus Bratton, a U.S. citizen who had been

abducted from Canada by a police detective from South Carolina. John

Bassett Moore, A Treatise on Extradition and Interstate Rendition § 190

(1891). A century later, U.S. agents crossed the Canadian border in hot

Pursuit of a U.S. deserter and seized him fifty yards inside Canada, but

returned him as soon as Canada protested. 1 M. Cherif Bassiouni,

nternational Extradition: United States Law and Practice 235 (2d rev. ed.

1987). Nor is the Mexican case involving Antonio Martinez, cited in JD Br. at

28 n.23, an exception to this rule. That case involved a private abductor,

acting without governmental authority, whose actions violated no treaty

obligation of the United States. See id.

abductions, no such express prohibition was required because the

practice was already plainly proscribed by background norms against

which the treaty was drafted. Indeed, only two months after the

treaty entered into force, the Justice Department's Office of Legal

Counsel (OLC) explicitly recognized these background norms,

issuing an opinion entitled “Extraterritorial Apprehension by the

Federal Bureau of Investigation.” 4B Op. Off. Leg. Counsel 543

(March 31, 1980). That opinion concluded that "the FBI only has

lawful authority [to engage in extraterritorial apprehension] when

the asylum state acquiesces to the proposed operation.” Id. at 544.

The OLC reasoned that

a forcible abduction, when coupled with a protest by

the asylum state is a violation of international law. . .

. It is regarded as an impermissible invasion of the

territorial integrity of another state. . . . Nor do

there appear to be any doctrines of self-help or self-

defense applicable in this context.**

45 , . .

Id. at 549. The 1980 OLC opinion also concluded that the FBI could

not make apprehension in contravention of internauional law under its general

enabling statutes, reasoning that those statutes must be construed restrictively

to prohibit any departure from the standards of international law. Id. at 551-

53.

In June 1989, less than a year before Dr. Alvarez was

abducted, the Office of Legal Counsel! issued a secret opinion

partially reversing the 1980 opinion.* As the title of his

Statement regarding that opinion suggests, then-Assistant Attorney

General William P. Barr explicitly conceded that such

extraterritorial apprehensions "depart from international law.” but

contended that the President could override customary international

law.*” In so saying he specified set the "1989 opinion does not

address the legal implications of deploying the FBI in violation of

provisions of self-executing treaties,” a category that has

See Statement of William P. Barr, Assistant Attorney General for the

Office of Legal Counsel on the Legality As a Matter of Domestic Law of

Extraterritorial Law Enforcement Activities That Depart From Internationa!

Law, Before the Subcommittee on Civil and Constitutional Rights of the

Committee on the Judiciary, United States House of Representatives at 8

(Nov. 8, 1989). Mr. Barr testified that "the content of the 1989 Opinion...

must remain confidential, [but] | am happy to share with the Committee our

legal reasoning and conclusions.” Id, at 3.

“’Mr. Barr reasoned that “the FBI's general enabling statutes should be

construed as permitting the agency to take extraterritorial action either when

such actions are consistent with Customary international law (as with the

consent of a foreign sovereign), or when the agency has been directed to do so

by a ‘controlling executive act’ that supplants customary international law." Id.

at 8 (emphasis added).

traditionally included extradition treaties. Id. at 4. See Resp. Br. at

46-53 (demonstrating that extradition treaties are self-executing).

Until this case, the Justice Department has never claimed a

general executive authority not simply to override Customary

international law, but to nullify a duly ratified treaty without the

advice and consent of the Senate, over the repeated protest of our

treaty partner, and in flagrant violation of well-established norms of

international law.“* The courts below wisely declined the

Department's invitation to engage in sweeping judicial revision of

an unambiguous, painstakingly negotiated treaty. This Court should

similarly reject the Justice Department's effort to stand the U.S.-

Mexico extradition treaty on its head by effecting a unilateral

reinterpretation that would rob the treaty of operative force.

48Nor has the Justice Department identified any “controlling executive

act,” presidential or otherwisc, that was expressly intended to supplant

international law in this case. Absent such an act, “[i]nternational law ts part

of our law, and must be ascertained and administered by courts of justice of

appropriate jurisdiction as often as questions of right depending upon it are

duly presented for their determination.” The Paquete Habana, 175 U.S. 677,

700 (1900).

CONCLUSION

For the foregoing reasons, the judgment of the Court ot

Appeals for the Ninth Circuit should be affirmed.

Respectfully Submitted,

MICHAEL RATNER HAROLD HONGJU KOH’

PETER WEISS Lowenstein Inter-

BETH STEPHENS national Human

JOSE LUIS MORIN Rights Clinic

DAVID COLE Allard K. Lowenstein

Center for Constitu- International

tional Rights Human Rights Law

666 Broadway Project

New York, NY 10012 127 Wall Street

(212) 614-6464 New Haven, CT 06520

(203) 432-4932

Attorneys for Amici

Curiae

On the Brief”’:

Thomas R. Hyde

Caroline D. Krass

L. Song Richardson

“Counsel of Record

"yD. Candidates, Yale Law School

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.