Amicus Curiae Brief — United States v. Alvarez-Machain

— Supreme Court, U.S.

G FILED

No. 91-712

MAR 5S 4992

IN

SUPREME COURT OF

THE | OFFICE OF THE CLERK

THE UNITED

October Term, 1991

UNITED STATES OF AMERICA,

Vv

Petitioner,

HUMBERTO ALVAREZ-MACHAIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

INTERNATIONAL HUMAN RIGHTS LAW GROUP

IN SUPPORT OF RESPONDENT

Of Counsel:

Steven M. Schneebaum

Janelle M. Diller

INTERNATIONAL HUMAN

RIGHTS LAW GROUP

1601 Conn. Ave., N.W.

Washington, D.C.

20009

(202) 232-8500

Stephen P. Doyle

*Paul Nielsen

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C.

20037

(202) 663-6000

Counsel for Amicus

Curiae

*Counsel of Record

BEST AVAILABLE COPY!” 8 &

QUESTION PRESENTED

Whether a person whom the government

forcibly abducts from abroad, without

any attempt to invoke the relevant

extradition treaty, has a right to be

repatriated when the state from which he

was abducted demands his return.

TABLE OF CONTENTS

Page

Table of authorities.......ceeeeeeeeeeiV

Interest Of AMiICUS......ccceseccecsseeel

Summary Of argument.......ceeceeeseeces 2

ATGUMOENE .cccccccccceweseccccscccsecccceed

I. THE UNITED STATES VIOLATED

CUSTOMARY INTERNATIONAL LAW

BY FORCIBLY ABDUCTING ALVAREZ-

MACHAIN FROM MEXICO......eeeeeeees 3

II. THE REMEDY FOR A FORCIBLE

ABDUCTION IN VIOLATION OF

CUSTOMARY INTERNATIONAL LAW

IS THE RETURN OF THE PERSON....... 12

III. THE CUSTOMARY INTERNATIONAL

LAW PROHIBITION ON FORCIBLE

ABDUCTION IS ENFORCEABLE IN

U.S. COURTS... cccccccccccces eccces 22

A. The Prohibition Is Law

of the United States,

and Is Not Displaced by

the Ker-Frisbie Doctrine

i is ccceeeeeee sc seeues 23

1. The 1980 Extradition

TEERCV ec cccccceccccescccces 26

2. "Controlling .

Legislative

os se #@o tee ee ov fteteeee#tet ee @ @ 26

- ii-

Page

3. “Controlling Executive

. 7 o Meee 66:46 6046466040600

4. The Ker-Frisbie

a i a a ee

B. Alvarez-Machain Has Standing

to Assert U.S. Violation

of Customary International

Law as a Defense to Personal

JUPESSISEIGRs ccccscoceccesoseeSs

COMBAUMOSOR. 6 a6 6 66060066606 668060606866008

- 133 -

TABLE OF AUTHORITIES

U.S. CASES Page

Air France v. Saks, 470 U.S.

392 EOE Pcceceeosccceseoceoeeeseae

Baker v. Carr, 369 U.S. 186

to: ) Rrrrrerrverr rye eee *e © # @ eres

Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398

i EOwePeecoceccecoesceescesoccentes 36

Benz v. Compania Naviera Hidalgo,

—_ — —

S.A., 353 U.S. 138 (1957)...e0~ ..28

Commodities Futures Trading

Commission v. Nahas, 738 F.2d

487 (D.C. Cir. 1984)... cece eeees 28

Cook v. Hart, 146 U.S. 183

Tae ebecoecececeocs ee 8fetete @ eer ere

Davis v. Packard, 32 U.S. (7 Pet.)

Bee COONS 66660666064 6666686 08 seoSa

Dupont v. Pichon, 4 U.S. (4 Dall.)

321 Teeeeecoceccoeeceoeeeeceecescesa

Equal Employment Opportunity

Commission v. Arabian American

Gas Gian SSL Bo Gee Saat

TSOP aP eco ccccccecseneseeseseceees 28

Factor v. Laubenheimer, 290 U.S.

STO CAUee sec eseoseseose eT Tere TTT rT 8

Federal Trade Commission v.

Compagnie de Saint-Gobain-Pont-

a-Mousson, 636 F.2d 1300 (D.C. Cir.

L9OOdecescecs VEVUCTTCCTTC CC TT CTT 29

Page

Foley Bros., Inc. v. Filardo,

336 U.S. 281 0). ) RPPPPPPT TITTY

Foster v. Neilson, 27 U.S.

(2 Pet.) 253 CLOSOdccccceccceceecae

Frisbie v. Collins, 342 U.S. 519

CL. >) PPP PTTTPTTITTTrrrrrrrrrirryt |.

Garcia-Mir v. Meese, 788 F.2d 1446

(llth Cir.), cert. denied, |

479 U.8. BBD (19SEC) occccccccccccs 37

Gerstein v. Pugh, 420 U.S. 103

CLF TDpccccccccccceceeccccccce+ co 040

Immigration and Naturalization

Service v. Lopez-Mendoza, 468

U.S. 1032 (1984). ccc cece cceseeee - 40

Kear v. Hilton, 699 F.2d 181

(4th uw i lt PTT TErTrrrrrerrs. ¢.

Ker v. People, 110 Ill. 627

(1884), aff'd, 119 U.S. 436

CLGSSd ccccccecsesecececes *eeneeete 8 @ 41

Ker v. Illinois, 119 U.S. 436

CRP ose eseseecesesccescecesee eee

Lascelles v. Georgia, 148 U.S.

SSF CEOOSPcceccccecececes TrrTrer. ..

Ex parte Lopez, 6 F. Supp. 342

(BeDe TOR. LOSE) cccccceccecs 00000243

Matta-Ballesteros ex rel. Stolar v.

Henman, 896 F.2d 255 (7th Cir.)

cert. denied, lll S. Ct.

BUD (LTTE) ccccccccccccccccccccce ef]

Page

The Merino, 22 U.S. (9 Wheat.)

391 CLEZE pd cccccccccccccccceccesces®

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804)......28

Nevada v. Hall, 440 U.S. 410

CEP TPpcccccccccccceccceccc cece +e cS

New York v. Harris, 110 S. Ct.

1640 OS) 1)

The Paquete Habana, 175 U.S. 677

(1900) ccc cccccccccvececeees Passim

Pettibone v. Nichols, 203 U.S. 192

CAFO cccecceceseseeoese ee @OewFtege Fe & & 40

Respublica v. De Longchamps, 1. U.S.

(1 Dall.) 111 (Pa. 1784)........ 24

Secretary of State of Maryland v.

Joseph H. Munson Co., 467 U.S.

947 (LISS) ccccccccccccsece em 2 2 3Q

The Ship Richmond v. United States,

13 U.S. (9 Cranch) 102 (1815)....39

Singleton v. Wulff, 428 U.S. 106

(LEFOpcccccesccoecccceccs SO, 49, 50

State v. Brewster, 7 Vt. 118

TLESOP ccecceseeccees eee eee eeee »o@e

Stevenson v. United States, 381

Teas S68 (UGH GhEe BUST F cocececes 46

Stone v. Powell, 428 U.S. 465

(1976) cee eeec cece reseerseesseees 40

Page

Tag v. Rogers, 267 F.2d 664 (D.C.

Cir. 1959), cert. denied,

362 U.B. BOE (iFGS) ccccecccccecccal

Talbot v. Janson, 3 U.S. (3 Dall.)

133 th. . ) PPPPPTIITITI TTT TTT Tere

United States v. Alvarez-Machain,

946 F.2d 1466 (9th Cir. 1991)....22

United States v. Caro-Quintero,

745 F. Supp. 599 (C.D. Cal.

SPPe dv ccoecocccessceeeeseoees e*evnee. 49

United States v. Cordero, 668 F.2d

Be CES GEbe SEE rccoccceccesShe $8

United States v. “otten, 471 F.2d

744 (9th Cir.), cert. denied,

411 U.S. 936 (1973). cece eee eee ee 45

United States v. Crews, 445 U.S.

GES CAPee sv cocccecccoscsecsooccce WF

United States v. Enger, 472

F. Supp. 490 (D.N.J. 1978).......52

United States v. Evans, 667

F. Supp. 974 (S.D.N.Y. 1987).....44

United States v. Fielding, 645

F.2d 719 (9th Cir. 1981).........44

United States v. Kaufman, 858

F.2d 994 (Sth Cir. 1988)......... 44

United States v. Lovato, 520

F.2d 1270 (9th Cir.) (per curiam),

cert. denied, 423 U.S. 985

(1975) cccccccvccccccccccccs 0002 0 44

- vii -

Page

United States ex rel. Lujan v.

Gengler, 510 F.2d 62 (2d Cir.),

cert. denied, 421 U.S. 1001

(1975) wcccccccccccccccsceeserldS, 42

United States v. Marzano, 537

F.2d 257 (7th Cir. 1976), cert.

denied, 429 U.S. 1038 (1977).....44

United States v. Matta-Ballesteros,

700 F. Supp. 528 (N.D. Fla.

19GE) ccccccccececccecs eseeenere?#e¢ TTT).

United States v. Postal, 589

F.2d 862 (5th Cir.), cert.

denied, 444 U.S. 832

[Eve elecoeceececeesece seesecesenes 43

United States v. Rauscher, 119

U.S. 407 (1886)... c eee eeeeevees ---8

United States v. Reed, 639

F.2d 896 (2d Cir. 1981)........ ~ +42

United States v. Rosenthal, 793

F.2d 1214 (llth Cir. 1986),

cert. denied, 480 U.S. 919

(LOST Pcccccccccccccecesccececcces 44

United States v. Sobell, 244

F.2d 520 (2d Cir.), cert.

denied, 355 U.S. 873

(1957) ccc ccccceccereereseseece ee 46

United States v. Toro, 840 F.2d

1221 (5th Cir. 1988)........-4l, 44

United States v. Toscanino, 500

F.2d 267 (2d Cir.), reh'g denied,

504 F.2d 1380 (1974)..... ce cecees 11

- viii -

Page

United States v. Unverzagt, 299 F.

1015 (W.D. Wash. 1924), aff'd

sub nom. Unverzagt v. Benn,

5 F.2d 492 (9th Cir.), cert.

denied, 269 U.S. 566 (1925)......42

United States v. Valot, 625

F.2d 308 (9th Cir. 1980).........44

United States v. Verdugo-Urquidez,

856 F.2d 1214 (9th Cir. 1988),

rev'd, 494 U.S. 259 (1990).......44

United States v. Verdugo-Urquidez,

939 F.2d 1341 (9th Cir. 1991),

petition for cert. pending,

Me DaWWlOccccceceecceecsacocesceae

United States v. Yunis, 681

F. Supp. 891 (D.D.C. 1988),

rev'd, 859 F.2d 953 (D.C.

gp ee

United States v. Zabeneh, 837 F.2d

1249 (Sth Cir. 1988).......22+---41

Valley Forge Christian College v.

Americans United for Separation

of Church and State, inc., 454

Vee GES (LSS pcccccccccccccccce cS)

Waits v. McGowan, 516 F.2d 203

t £8) ee ere ere ee TTT

- ix -

INTERNATIONAL CASES Page

Afouneh v. Attorney-General, 10

Ann. Dig. 327 (Palestine S. Ct.

LWEZ) cccccccccccccccccccceccceesedG

Attorney General v. Eichmann,

(Israel Dist. Ct. 1961), reprinted

in 36 Int'l L. Rep. 18 (1968),

aff'd (Israel S. Ct. 1962),

reprinted in id. at 277..........1l1

Re Argoud, 1964 Bull. Crim. No. 420,

45 Int'l L. Rep. 90 (Cour de

Cassation June 4, 1964).......... 16

Ex parte Elliott, 1 All E.R. 373

(K.B. LIED) cccccccccces e*eenee#eoee#ee#e#se# # 15

In Re Jolis, 2 S. Jur. II 105

(1934), 7 Ann. Dig. 191 (Trib.

Corr. d'Avesnes July 22, 1933)...17

In Re Karoly, 4 Ann. Dig. 345

(Hungarian Minister of Justice

b>. ) rrr rrTrrrerrrerrerrrerierery «.

S.S. “Lotus" (Turkey v. France),

[1927] P.C.I.J. (ser. A) No. 10,

reprinted in 2 M. Hudson,

World Court Reports (1935)........ 5

Matter of Nollet, Journal du Droit

Int'l 1188 (Cour d'appel de

Douai LOL pcccccccccecccescecccceal

R. v. Lopez and Sattler, 1 Dearsly

& Bell's Crown Cases 525 (1858)..16

The Savarkar Case (Feb. 24, 1911),

reprinted in Hague Ct. Rep.

LLG (BSOCE GG. LHS) ccccccccccececs 15

Page

Ex parte Scott, 9 Barn & C. 446

Ci: ) FROPPTTTTTTTT TTT

United States Diplomatic and Consular

Staff in Tehran (U.S. v. Iran),

1980 I.C.J. Rep. 3 (Judgment of

May 24) wccccccccccccccccccccecceedd

19 GGART 25 Verfahrenshindernis wegen

Verletzung von Hoheitsrechten

(German S. Ct.), reprinted in

1985 Neuve Zeitschrift fur

Bete eeeee Bee GeecccecceesescecelkldS

TREATIES AND STATUTES

1S U.S.C. § BTJleccccccccccccccccces3@

18 U.S.C. § LLL cccccccccccccsccceedO

LE U.S.C. § LBL cccccccccccccceceedO

18 U.S.C. § 1989. cc ccccccccccccceee 30

21 U.S.C. §$ STB. cccccccccccccccceeedO

22 U.S.C. §$ SAL cccccccvecccccccsecdsl

46 U.S.C. app. 1903... cc cccesseseeeda

Extradition Treaty Between the United

States of America and the United

Mexican States, 31 U.S.T. 5059,

T.I.A.S. No. 9656 (entered into

force in U.S. Jan. 25, 1980)..3, 26

Vienna Convention on Diplomatic

Relations, T.I.A.S. 7502, 23 U.S.T.

3227 (entered into force in U.S.

BBS. AFe JFFSldeccccccecscoeecoeseeda

MISCELLANEOUS Page

FBI Authority to Seize Suspects

Abroad: Hearing Before the

Subcomm. on Civil and Consti-

tutional Rights of the House

Judiciary Comm., 101st Cong.,

Ist Sess. (1989).............passim

Senate Foreign Relations Committee,

Internal Security Assistance and

Arms Export Control Act of 1976:

Report on S. 2662, S. Rep. No.

605, 94th Cong., 2d Sess.

(1976) cccccccccccccccsesecccccsccedds

Extraterritorial Apprehension by

the Federal Bureau of Investi-

gation, 4B Op. Off. Legal

Couns. $43 (1980) .ccccccccceccecs 18

19 Department of State Bulletin

CIDER) ccccccccecescecceccescecsesee®

Letter from Robert Bacon, Acting

Secretary of State to Mexican

Chargé, (June 22, 1906),

reprinted in H.R. Doc.

No. 1, Part 2, 59th Cong.,

2G SESS. (1909) ccccccccccccccsecs 43

U.N. Doc. S/4349 (1960)... ewes 9

Restatement (Third) of the Foreign

Relations Law of the United

States (1987).......e2eeee++-passim

1 M. Bassiouni, International

Extradition: United States

Law and Practice (2d rev.

GEe LOOT Pc cccceeeeeeccccecececeoce 17

- xii -

Henkin, The Constitution and

United States Sovereignty:

A Century of Chinese Exclusion

and Its Progeny, 100 Harv. L.

MOV. BES (APST) cccccccccccccccce s 3B

1 H. Lauterpacht, International Law

(E. Lauterpacht ed. 1970).........7

Mann, Reflections on the Prosecution

of Persons Abducted in Breach of

International Law, in Inter-

national Law at a Time of Per-

plexity 407 (Y. Dinstein ed.

BPOe Pp cceccessesooovcseceeseode Be AS

1 L. Oppenheim, International Law

H. Lauterpacht, 8th ed. 1955).....4

Preuss, Settlement of the Jacob

Kidnapping Case, 30 Am. J. Int'l

Le 123 (1936). cc ceecececeseceeseelT

7 M. Whiteman, Digest of Inter-

national Law (1970)......... eececes

- xiii -

No. 91-712

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

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 THE

INTERNATIONAL HUMAN RIGHTS LAW

GROUP IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS

The International Human Rights Law

Group ("“IHRLG") is a non-profit legal

Organization that promotes the

observance of international human

rights. Founded in 1978, the IHRLG

provides legal assistance and infor-

mation on international human rights law

and has Category II consultative status

with the United Nations Economic and

Social Council. In lawsuits raising

questions of international human rights,

the IHRLG provides legal advice with the

assistance of private attorneys working

on a pro bono basis. The IHRLG has

obtained the written consent of the

parties to file this brief.

SUMMARY OF ARGUMENT

Customary international law forbids

one sovereign state from forcibly

abducting a person from another

sovereign state without the express or

implied consent of that state. When the

aggrieved state objects to the abduction

and demands the return of the person,

customary international law requires the

abducting state to return him. These

principles are enforceable in the

present case because customary inter-

national law is generally applicable in

U.S. courts and these particular rules

are not displaced by the Ker-Frisbie

doctrine or otherwise. However, the

Court need not reach these issues if it

affirms the court of appeals' inter-

pretation of the Extradition Treaty

Between the United States of America and

the United Mexican States, 31 U.S.T.

5059, T.1I.A.S. No. 9656 (the "1980

Extradition Treaty"). The IHRLG here

expresses no view on that issue.

ARGUMENT

I. THE UNITED STATES VIOLATED CUSTOMARY

INTERNATIONAL LAW BY FORCIBLY

ABDUCTING ALVAREZ-MACHAIN FROM

MEXICO

Throughout this litigation, the

parties and lower courts have focused on

whether the forcible abduction from

Mexico, at the behest of the United

States Government, of a Mexican citizen

charged with U.S. federal crimes, vio-

lates the 1980 Extradition Treaty and

requires his repatriation. This focus

has obscured the fact that customary

international law, wholly apart from any

rights and remedies that may exist under

the 1980 Extradition Treaty, prohibits

such a forcible abduction and, given the

Mexican diplomatic protest, requires

Alvarez to be repatriated.

The customary international law

prohibition on forcible abduction flows

from the rule that “States must not

perform acts of sovereignty within the

territory of another State." 1 L.

Oppenheim, International Law § 144b (H.

-Lauterpacht, 8th ed. 1955). This rule,

like all rules of customary inter-

national law, “results from a general

and consistent practice of states

followed by them from a sense of legal

obligation." Restatement (Third) of the

Foreign Relations Law of the United

States §102(2) (1987) ("Restatement").

The rule is well-established in the main

sources of evidence of customary inter-

national law: decisions of inter-

national and national tribunals and

scholarly writings.2/ As for U.S.

1/ E.g., S.S. "Lotus" (Turkey v.

France), [1927] P.C.I.J. (ser. A.)

No. 10 at 18, in 2 M. Hudson, World

Court Reports 20, 35 (1935) ("the

first and foremost restriction im-

posed by international law upon a

State is that -- failing the exis-

tence of a permissive rule to the

contrary -- it may not exercise its

powers in any form in the territory

of another State"); F.A. Mann,

Reflections on the Prosecution of

Persons Abducted in Breach of inter-

national Law [hereinafter "Mann"],

in International Law at a Time of

Perplexity 407 (Y. Dinstein ed.

1989) ("“[E]xercise of physical force

by one State in the territory of

another State without the latter's

consent constitutes an excess of

international jurisdiction or a

violation of the 'principle of

Continued

practice, the State Department has

declared that “the Government of the

United States cannot permit the exercise

within the United States of the police

power of any foreign government." 19

Department of State Bulletin 251 (1948).

"Thus, while a state may cake cer-

tain measures of nonjudicial enforcement

against a person in another state, ...

its law enforcement officers cannot

arrest him in another state, and can

engage in criminal investigation in that

state only with that state's consent."

Restatement § 432 comment b. Indeed,

the Legal Adviser of the Department of

State made precisely this point in

testimony to Congress: "Forcible

respect for State sovereignty'");

Restatement § 432 comment b ("It is

universally recognized, as a

corollary of state sovereignty, that

officials of one state may not exer-

cise their functions in the terri-

tory of another state without the

latter's consent.").

abductions from a foreign State clearly

violate this principle” requiring

respect for sovereignty. FBI Authority

to Seize Suspects Abroad: Hearing Before

the Subcomm. on Civil and Constitutional

Rights of the House Judiciary Comn.,

10lst Cong., lst Sess. 31 (1989)

{hereinafter “House Oversight Hearing"]

(prepared statement of Hon. Abraham

Sofaer). Accord Mann at 407 ("A State

which authorizes the abduction of a

person from the territory of another

sovereign state is guilty of a violation

of public international law."); 1 H.

Lauterpacht, International Law 488 (E.

Lauterpacht ed. 1970).

There are, of course, many instances

in which one state obtains custody of a

person from abroad without violating the

sovereignty of the rendering state.

Most typically, this is done pursuant to

an extradition treaty specifically

intended to permit one state to obtain

persons from another state without

sending agents there to conduct law

enforcement activities in violation of

international law. "(T]he principles of

international law recognize no right to

extradition apart from treaty." Factor

v. Laubenheimer, 290 U.S. 276, 287

(1933). “It is only in modern times

that the nations of the earth have

imposed upon themselves the obligation

of delivering up these fugitives from

justice to the States where their crimes

were committed, for trial and punish-

ment. This has been done generally by

treaties made by one independent

government with another." United States

v. Rauscher, 119 U.S. 407, 411 (1886).

Aside from formal extradition

proceedings, a state may obtain the

consent or even cooperation of the

foreign state to seize a person in its

territory. Where consent in advance is

not obtained, the states may reach

agreement after the fact to settle

differences arising from the act of one

seizing a person from the territory of

the other. See generally House

Oversight Hearing at 33-34 (statement of

Hon. Abraham Sofaer describing varieties

of express and implied consent).

Agreement after the fact is perhaps

best illustrated by Israel's 1960

abduction of Adolph Eichmann from

Argentina. There, Argentina filed a

formal complaint with the United Nations

Security Council, which adopted, with no

votes against, a resolution condemning

the abduction and requesting "the

Government of Israel to make appropriate

reparation."2/ The resolution “merely

2/ The resolution, U.N. Doc. S/4349

(1960), reprinted in House Oversight

Hearing at 81, stated in relevant

Dart:

Continued

recognized a long standing principle of

international law that abductions by one

State of persons located within the

The Security Council,

Having examined the complaint

that the transfer of Adolf

Eichmann to the territory of

Israel constitutes a violation

of the sovereignty of the

Argentine Republic,

Considering that the violation

of the sovereignty of a Member

State is incompatible with the

Charter of the United Nations,

Noting that the repetition of

acts such as that giving rise

to this situation would involve

a breach of the principles upon

which international order is

founded creating an atmosphere

of insecurity and distrust

incompatible with the

preservation of peace,

2. Requests the Government of

Israel to make appropriate re-

paration in accordance with the

Charter of the United Nations

and the rules of international

BOM. « 6 6

- 10 -

territory of another violate the terri-

torial sovereignty of the second state

and are redressable usually by the

return of the person kidnapped." United

States v. Toscanino, 500 F.2d 267, 278

(2d Cir. 1974). By the time of

Eichmann's trial, however, the states

had settled Argentina's claims at the

diplomatic level, "“resolv[ing] to regard

as closed the incident which arose out

of the action taken by citizens of

Israel, which infringed fundamental

rights of the State of Argentina.”

Attorney General v. Eichmann (Israel

Dist. Ct. 1961) (quoting joint

communiqué), reprinted in 36 Int'l L.

Rep. 18, 59 (1968). “In these circum-

stances the accused cannot presume to

speak, as it were, on behalf of

Argentina and claim rights which that

sovereign State had waived.” Id. at 63,

aff'd (Israel S. Ct. 1962), reprinted in

- ll -

id. at 277, 305-06.

As discussed below at 39-44, all the

U.S. caselaw on forcible abduction falls

into some form of express or implied

consent. None detracts in any way from

the basic rule of customary inter-

national law that, in the absence of

such consent, no state can forcibly

abduct a person from another state, as

the U.S. Government did here. See Pet.

Br. at 2-4 (describing abduction).

II. THE REMEDY FOR A FORCIBLE ABDUCTION

IN VIOLATION OF CUSTOMARY INTER-

NATIONAL LAW IS THE RETURN OF THE

PERSON

When a state violates an inter-

national legal obligation to another

State, the offending state must "ter-

minate the violation and, Ordinarily,

- + Make reparation, including in

appropriate circumstances restitution or

compensation for loss or injury."

- 12 -

Restatement § 901. The remedy must

“provide redress for the breach of the

international obligation that gave rise

to the claim. Ordinarily, emphasis is

on forms of redress that will undo the

effect of the violation, such as restor-

ation of the status quo ante, resti-

tution, or specific performance of an

undertaking." Id. comment d.

The United States sought and

obtained a judgment ordering restitution

in the Iran hostages case before the

International Court of Justice, United

States Diplomatic and Consular Staff in

Tehran (U.S. v. Iran), 1980 I.C.J. 3

(Judgment of May 24). There, the Court

held the Iranian Government responsible

for the seizure and detention in

violation of the Vienna Conventions on

Diplomatic and Consular Relations, a

bilateral treaty, and customary

international law. 1980 I.C.J. 490, at

- 13-

42. Accordingly, the Court unanimously

declared that the Iranian Government

“must immediately take all steps to

redress the situation," and in

particular “must immediately terminate

the unlawful detention of the United

States Chargé d'affaires and other

diplomatic and consular staff and other

United States nationals now held hostage

in Iran, and must release each and every

one and entrust them to [the United

States Government]." Id. 495, at 45.

For cases of forcible abduction in

violation of state sovereignty, this

general rule of remedies requires, when

the aggrieved state protests, the re-

lease and repatriation of the person

seized. Thus, the Restatement provides:

If a state's law enforcement

officials exercise their functions

in the territory of another state

without the latter's consent, that

state is entitled to protest and, in

appropriate cases, to receive

- 14 -

reparation from the offending

state. 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. If

the state from which the person was

abducted does not demand his return,

under the prevailing view the

abducting state may proceed to

prosecute him under its laws.

Restatement § 432 comment c (emphasis

added). Similarly, Professor Mann

states that "{t]he normal and generally

accepted remedy in the event of a

wrongful abduction is the return of the

victim, i.e., restitution in kind."

Mann at 4ll.

Of course, there are numerous cases

in which courts have retained juris-

diction because local officials coop-

erated in the abduction,3/ there was a

3/ E.g., Ex parte Elliott, 1 All E.R.

373 (K.B. 1949) (arrest in Belgium

by two British military officers

accompanied by two Belgian police

officers); The Savarkar Case (Feb.

24, 1911), reprinted in Hague Court

Reports 275 (Scott ed. 1916)

Continued

- 15 -

complete lack of protest, 4/ or such

protest as there was failed to meet

domestic standards. 2/. Nevertheless,

"([t]here are numerous cases in which the

(arbitral panel holds France not to

be entitled to the restitution of a

British-Indian fugitive who had

eluded British custody while on a

ship docked in Marseilles and had

been returned to British authorities

by a French policeman).

4/ £E.g., Afouneh v. Attorney-General,

10 Ann. Dig. 327 (Palestine S. Ct.

1942) (arrest in Syria by Palestine

police); In re Karoly, 4 Ann. Dig.

345 (Hungarian Minister of Justice

- 1928); R. v. Lopez and Sattler, 1

Dearsly & Bell's Crown Cases 525

(1858); Ex parte Scott, 9 Barn & C.

446 (1829) (arrest in Belgium by

English police).

S/ E.g., 19 GGART 25

Verfahrenshindernis wegen Verletzung

von Hoheitsrechten (German S. Ct.)

reprinted in 1985 Neue Zeitschrift

fur Strafrecht STZ 464 (arrest in

the Netherlands by German police;

note from the Dutch embassy did not

meet the German Constitution's

requirement that the foreign

government formally object to the

defendant's prosecution); Re Argoud,

1964 Bull. Crim. No. 420, 45-Int'l

L. Rep. 90 (Cour de Cassation June

4, 1964) (forcible abduction from

Germany; protest arrived late).

- 16-

injured State has demanded, and the

wrongdoing State has agreed, to the

return of the victim. It is important

to stress the unanimity of practice and

doctrine on this point, for it has often

been doubted whether international law

recognizes the remedy of restitution in

kind. . .. This view is clearly

without foundation ... ." Mann at

411.5/

6/ E.g., Jacob Case (1935), in Preuss,

Settlement of the Jacob Kidnapping

Case, 30 Am. J. Int'l L. 123 (1936)

(Germany released a German seized in

Switzerland, after Switzerland init-

iated arbitration under a Swiss-

German treaty); In Re Jolis, 2 S.

Jur. II 105 (1934), 7 Ann. Dig. 191

(Tribunal Correctionel d'Avesnes,

France, July 22, 1933) (arrest in

Belgium by French police; Belgian

Government protested to the French

Government and demanded the return

of the individual); Matter of

Nollet, Journal du Droit Int'l 1188

(Cour d'appel de Douai 1891) (arrest

in Belgium by French police). See

generally 1 M. Bassiouni,

International Extradition: United

States Law and Practice, ch. V, §

5.4, at 234-37 (2d rev. ed. 1987)

Continued

- l7 -

"The United States has repeatedly

associated itself with the view that

unconsented arrests violate the

principle of territorial integrity."

House Oversight Hearing at 32 (prepared

statement of Hon. Abraham Sofaer). The

Office of Legal Counsel ("OLC") in the

U.S. Department of Justice endorsed it

in a formal 1980 opinion to the Attorney

General when asked about the legality of

a proposed forcible abduction by the

PBI. Extraterritorial Apprehension by

the Federal Bureau of Investigation, 4B

Op. Off. Legal Couns. 543 (1980) (the

"OLC Opinion"), reprinted in House

Oversight Hearing at 75. The OLC

concluded “it appears to be the case

that a forcible abduction, when coupled

with a protest by the asylum state, is a

violation of international law. It is

(collecting cases).

- 18 -

regarded as an impermissible invasion of

the territorial integrity of another

state." OLC Opinion at 549 (citing

United States ex rel. Lujan v. Gengler,

510 F.2d 62, 67 (2d Cir.), cert. denied,

421 U.S. 1001 (1975)).

Although the Department of Justice

later retracted the OLC Opinion and

issued a new, unpublished one, it did so

for reasons entirely unrelated to the

recognition of the proscription, under

customary international law, on forcibly

abducting a person from another

sovereign state over its protest.

According to then-Assistant Attorney

General William Barr and State

Department Legal Adviser Sofaer, the OLC

issued the new opinion to assert (1) the

authority of Congress and the President,

under U.S. law, to violate customary

international law; (2) the authority of

the FBI, under its enabling statutes, to

- 19 -

conduct forcible abductions without the

express or implied consent of the

foreign state; and (3) the authority of

the United States, under international

law, to undertake certain forcible

abductions as a matter of self-

defense. House Oversight Hearing at 2-

21 (statement of William Barr); id. at

22-42 (statement of Hon. Abraham

Sofaer).

In the present case, we do not

understand the Government to justify the

abduction of Alvarez-Machain under

customary international law as a matter

of national self-defense. "The evidence

of imminent harm from [drug] traf-

fickers' threats would have to be strong

to sustain a self-defense argument."

Id. at 24 (statement of Hon. Abraham

Sofaer). "[T]here would have to be

specific acts or dangers that amounted

to an attack on the United States under

- 20 -

the U.N. Charter... ." Id. at 68

(same). And, as discussed below at 26-

47, none of the bases under U.S. law to

displace the customary international law

proscription on forcible abduction

applies here.

Moreover, whatever the minimum level

of protest might be necessary to trigger

this customary international law remedy

of repatriation, it has surely been met

in the present case. The diplomatic

note dated May 16, 1990 from the Embassy

of Mexico to the State Department

plainly stated that the forcible

abduction of Alvarez-Machain "violate([d]

both the mexican Constitutional Law, as

well as International Law" and demanded

his return to Mexico to stand trial, if

the facts warranted, under Mexican

law. J.A. at 35-36. The Mexican

Secretaria de Relaciones Exteriores

Consulada General repeated these views

- 21-

directly to the court of appeals in a

letter dated November 9, 1990. Id. at

67-71. Based on these documents, the

court of appeals correctly found "there

remains no question about the adequacy

of Mexico's protests in this case or

about Mexico's demand for

repatriation." United States v.

Alvarez-Machain, 946 F.2d 1466, 1467

(9th Cir. 1991). Compare United States

v. Verdugo-Urquidez, 939 F.2d 1341, 1360

& n.22 (9th Cir. 1991) (finding

sufficient protest on the record),

petition for cert. pending, No. 91-670,

with id. at 1364-69 (Browning, J.,

concurring but advocating remand to

determine adequacy of protest).

III.THE CUSTOMARY INTERNATIONAL LAW

PROHIBITION ON FORCIBLE ABDUCTION IS

ENFORCEABLE IN U.S.COURTS

As shown above, customary inter-

national law forbids one state from

- 22 -

forcibly abducting a person from another

state, without its express or implied

consent; when that state protests,

customary international law requires the

abducting state to return him; and,

thus, on the facts of this case, the

United States is obligated to return

Alvarez-Machain to Mexico. In this sec-

tion, we discuss why Alvarez-Machain can

invoke these rules in federal court.

A. The Prohibition Is Law of the

United States, and Is Not

Displaced by the Ker-Frisbie

Doctrine or Otherwise

"International law is part of our

law, and must be ascertained and admin-

istered by the 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). Unlike treaties, which may

- 23-

require implementing legislation to

become enforceable in U.S. courts, see

Foster v. Neilson, 27 U.S. (2 Pet.) 253,

298 (1829), customary international law

is self-executing. In other words, as a

starting proposition, customary inter-

national law is enforceable in U.S.

courts and, like federal common law, is

Supreme to state law. Restatement §§

11l1l(1), (3). See also, e.g., Respublica

v. De Longchamps, 1 U.S. (1 Dall.) 111,

116-17 (Pa. 1784) (defendant held liable

under customary international law for

assault on French diplomat); Talbot v.

Janson, 3 U.S. (3 Dall.) 133, 161 (1795)

(international law creates a domestic

cause of action in seizure of foreign

vessel in international waters); Banco

Nacional de Cuba v. Sabbatino, 376 U.S.

398, 451-53 & nn.14-15 (1964) (White,

J., dissenting) (collecting cases).

- 24 -

Oe! 6 et ee

|

;

This is not to say that customary

international law is necessarily supreme

to other sources of federal law appli-

cable in U.S. courts. Customary

international law “will not be given

effect as law in the United States if it

is inconsistent with the United States

Constitution." Restatement § 115(3).

And in regard to other sources of

federal law, this Court explained in The

Pagquete Habana that international law

applies if "there is no treaty, and no

controlling executive or legislative act

or judicial decision." 175 U.S. at

700. (Of course, any such act or

decision must itself be consistent with

the Constitution.) In the present case,

the customary international law prohibi-

tion on forcible abduction is neither

"inconsistent" with the Constitution nor

displaced by any of the four potential

- 25 -

sources of federal law listed in The

Paquete Habana.

ie The 1980 Extradition

Treaty

Whether or not the 1980 Extradition

Treaty prohibits forcible abduction, it

certainly creates no right, expressly or

by implication, to do it. See Air

France v. Saks, 470 U.S. 392, 397

(1985); Restatement § 325(1) (a treaty

is “to be interpreted in good faith in

accordance with the ordinary meaning to

be given to its terms in their context

and in the light of its object and

purpose"). That being so, the treaty

does not displace the general rule of

customary international law prohibiting

forcible abduction.

2. "Controlling...

Legislative Act"

Likewise, Congress did not authorize

the Drug Enforcement Administration

("DEA") or its agents forcibly to abduct

- 26 -

persons charged with the crimes for

which Alvarez-Machain is indicted.

Insofar as U.S. courts are concerned,

Congress has the Constitutional power to

authorize forcible abduction, and such

legislation would be "controlling,"

under The Paquete Habana, to displace

any conflicting rule of customary inter-

national law. See Tag v. Rogers, 267

F.2d 664, 668 (D.C. Cir. 1959), cert.

denied, 362 U.S. 904 (1960); Restatement

§115(1)(a). But “{w]hile Congress and

the President have the power to depart

from international law, the courts have

in effect insisted that they do so

unambiguously and deliberately. This

doctrine reflects how our nation's

respect for international law is built

into our domestic legal system, and the

high value accorded that law in theory

and practice." House Oversight Hearing

at 30 (statement of Hon. Abraham

- 27 -

Sofaer). "Therefore, unless there is

‘the affirmative intention of the

Congress clearly expressed,' we must

presume [a statute] ‘is primarily

concerned with domestic conditions.'"

Equal Employment Opportunity Commission

v. Arabian American Oil Co., 111 S. Ct.

1227, 1230 (1991) ("EEOC") (quoting Benz

v. Compania Naviera Hidalgo, S.A., 353

U.S. 138, 147 (1957), and Foley Bros.,

Inc. v. Filardo, 336 U.S. 281, 285

(1949)).2/

7/ See, e.g., Murray v. Schooner

Charming Betsy, 6 U.S. (2 Cranch)

64, 118 (1804) ("an act of congress

ought never to be construed to

violate the law of nations, if any

other possible construction re-

mains"); Commodities Futures Trading

Comm'n v. Nahas, 738 F.2d 487, 493

(D.C. Cir. 1984) ("To construe 7

U.S.C. § 15 as empowering the

district court to enforce an

investigative subpoena served on a

foreign citizen in a foreign nation

would seriously impinge on

principles of international law.");

Federal Trade Comm'n v. Compagnie de

Saint-Gobain-Pont-a-Mousson, 636

F.2d 1300, 1323 (D.C. Cir. 1980)

Continued

- 28 -

A A ee

At this juncture, it is important to

distinguish between prescriptive juris-

diction (i.e., “the authority of a state

to make its law applicable to persons or

activities") and enforcement juris-

diction (i.e., “the authority of a state

to use the resources of government to

induce or compel compliance with its

law"). Restatement Part IV Introductory

Note. The criminal statutes under which

Alvarez-Machain has been indicted are.

wholly prescriptive: committing violent

acts in aid of racketeering (18 U.S.C. §

("Given the plain intrusion upon

French national sovereignty

resulting from the FTC's direct

service of its compulsory process

abroad and the violation of

international law which would result

if the district court were to en-

force the subpoena here, the only

issue is whether the provisions

which governed subpoena service

within the FTC Act at the time of

the challenged service could have

been sensibly construed so as-.to

-avoid conflict with international

law.") (footnotes omitted);

Restatement § 114.

- 29 -

1959) and conspiring to do so (18 U.S.C.

§ 371), kidnapping a federal agent and

conspiring to do so (18 U.S.C. §§

1201(c) and 1201(a)(5)), and murdering a

federal agent (18 U.S.C. § 1111). These

statutes do not, by themselves,

authorize any extraterritorial enforce-

ment measures such as forcible

abduction.

The sole grant of enforcement

jurisdiction to the DEA, 21 U.S.C. §

878(a), is silent as to extraterritorial

application and thus, under EEOC, cannot

be read to authorize forcible abduction

in violation of customary international

law. That statute provides: =

Any officer or employee of the Drug

Enforcement Administration or any

State or local law enforcement

officer designated by the Attorney

General may--

(1) carry firearms;

(2) execute and serve search

Warrants, arrests warrants,

administrative inspection warrants,

- 30 -

ee ee ee

subpoenas,. and summonses issued

under the authority of the United

States;

(3) make arrests without warrant (A)

for any offense against the United

States committed in his presence, or

(B) for any felony, cognizable under

the laws of the United States, if he

has probable cause to believe that

the person to be arrested has

committed or is committing a felony;

(4) make seizures of property

pursuant to the provisions of this

subchapter; and

(5) perform such other law

enforcement duties as the Attorney

General may designate.

To the extent Congress has expressly

addressed extraterritorial enforcement

by the DEA, it has heen to restrict such

activity: "No officer or employee of

the United States may directly effect an

arrest in any foreign country as part of

any foreign police action with respect

to narcotics control efforts." 22

U.S.C. § 2291(c)(1). See Senate Foreign

Relations Comm., Internal Security

Assistance and Arms Export Control Act

- 3l1-

of 1976: Report on S. 2662, S. Rep. No.

605, 94th Cong., 2d Sess. 54-55 (1976)

(declaration of committee intent

regarding 22 U.S.C. § 229l(c)(1)). When

Congress intends to displace customary

international law with respect to

enforcement jurisdiction, it does so

plainly. E.g., Section 3202(d) of the

Maritime Drug Law Enforcement

Prosecution Improvements Act of 1986,

Pub. L. No. 99-570, 100 Stat. 3207-96,

(codified as amended at 46 U.S.C. app. §

1903(d)) ("A claim of failure to comply

with international law in the

enforcement of this Act may be invoked

by a foreign state, and a failure to

comply with international law shall not

divest a court of jurisdiction or

otherwise constitute a defense to any

proceeding under this Act.").

- 32 -

3. "Controlling Executive

- » » Act”

Nor has there been in this case any

"controlling executive ... act" in the

sense required by The Paquete Habana, as

the facts of that case make clear.

There, this Court sat as a prize court

with jurisdiction over two fishing boats

captured during the Spanish-American

War. With an extensive review of the

evidence of international law, the Court

concluded that "[b]y an ancient usage

among civilized nations, beginning

centuries ago, and gradually ripening

into a rule of international law, coast

fishing vessels, pursuing their vocation

of catching and bringing in fresh fish,

have been recognized as exempt, with

their cargoes and crews, from capture as

prize of war." 175 U.S. at 686. "This

rule of international law is one which

prize courts, administering the law of

- 33-

nations, are bound to take judicial

notice of, and to give effect to, in the

absence of any treaty or other public

act of their own government in relation

to the matter." Id. at 708. On the

facts, the relevant “public acts" were a

Presidential Proclamation to institute a

naval blockade "in pursuance of the laws

of the United States, and the law of

nations applicable to such cases," and

an authorization from the Secretary of

the Navy to the fleet admiral to seize

vessels “attempting to violate blockade"

and to detain "any such vessel or crew

considered likely to aid enemy." Id. at

712-13. Since both vessels seized were

coastal fishing vessels and neither

attempted to violate the blockade nor

was likely to aid the enemy, the Court

enforced the customary international law

of prize and held the Government liable

for the seizures. Id. at 713-14. In

- 34 <-

short, “the decision in [The Paquete

Habana] found no controlling Executive

Act, affirmed the relevance of inter-

a a

national law to the conduct of Executive

Branch officials, and disallowed an

action by a lower official because it

violated international law." House

Oversight Hearing at 27 (prepared

statement of Hon. Abraham Sofaer).

That the Court addressed the merits

in The Paquete Habana rebuts any argu-

ment that the present case poses a non-

justiciable “political question." Cf.

Pet. Br. at 38-41. All a court need

determine in a forcible abduction case

is (a) whether there was a violation of

customary international law (i.e., the

fact of the abduction, state

responsibility for it, and adequate

protest from the aggrieved state), and

if there was (b) whether, in the

circumstances of the case, that law is

- 35 -

displaced by any contrary treaty or

"controlling executive or legislative

act or judicial decision." 175 U.S. at

700. The fact that Congress and the

President have the power to displace

customary international law means that

cases where neither of them have’

exercised that power present no

separation of powers concerns, see Banco

Nacional de Cuba, 376 U.S. at 427-37, or

“political questions," see Baker v.

Carr, 369 U.S. 186, 211-12, 217 (1962).

In the present case, the relevant

"executive act" was the authorization by

DEA Agent Hector Berrellez to Antonio

Garate-Bustamante "to tell his

associates that, in return for the

delivery of respondent to the DEA's

custody in the United States, the DEA

would pay a $50,000 reward plus

expenses." Pet. Br. at 3. This was not

an act done at sufficient seniority in

- 36 -

the Executive Branch to displace

customary international law. Cf.

Garcia-Mir v. Meese, 788 F.2d 1446, 1454

(llth Cir.) ("there was such a

controlling act in the Attorney

General's termination of the status

review plan [concerning a class of Cuban

refugees] and in his decision to incar-

cerate indefinitely pending efforts to

deport"), cert. denied, 479 U.S.. 889

(1986); House Oversight Hearing at 68

(statement of Assistant Attorney General

Barr that there would be "presidential

consideration” of any proposed forcible

abduction by the FBI without foreign

state consent).

Moreoever, we do not understand the

Government to argue that the Executive

Branch in this case ever chose to dis-

regard customary international law, but

rather to argue that there was no vio-

lation. This justification fails to

- 37 -

meet the plain statement rule the courts

have required of both Congress and the

President to displace customary inter-

national law. The plain statement rule

is particularly important to enforce

against the Executive Branch, for

"“Cu]Jnlike Congress, the President has no

general authority to make law that might

compete with international law as law of

the United States." Henkin, The

Constitution and United States

Sovereignty: A Century of Chinese

Exclusion and Its Progeny, 100 Harv. L.

Rev. 853, 879 (1987) (Presidential

authority to displace customary inter-

national law might be grounded in the

foreign affairs powers of Article II,

but not in the Article II, § 3 directive

to “take Care that the Laws be

faithfully executed").

- 38 -

4. The Ker-Frisbie Doctrine

This leaves the fourth factor under

The Paquete Habana, whether there is a

"controlling . . . judicial decision"

displacing customary international

law. To be sure, this Court and various

lower courts have held that "the power

of a court to tfy a person for crime is

not impaired by the fact that he had

been brought within the court's juris-

diction by reason of a ‘forcible

abduction.'" Frisbie v. Collins, 342

U.S. 519, 522 (1952). See also Ker v.

Illinois, 119 U.S. 436, 444 (1886); The

Merino, 22 U.S. (9 Wheat.) 391, 402-03

(1824) (ship seizure); The Ship Richmond

v. United States, 13 U.S. (9 Cranch)

102, 104 (1815) (ship seizure);

Restatement § 433. However, none of the

cases applying this Ker-Frisbie rule

have involved the exact fact pattern

- 39 -

presented here: a forcible abduction,

without the express or implied consent

of the foreign state and indeed causing

it to protest, at the behest of the U.S.

Government. Frisbie, for instance,

arose from an interstate abduction

within the United States and thus

presented no question of customary

international law. 8/ In Ker, The

8/ See also, e.g., New York v. Harris,

110 S. Ct. 1640, 1643 (1990);

Immigration and Naturalization Serv.

v. Lopez-Mendoza, 468 U.S. 1032,

1038-1039 (1984); United States v.

Crews, 445 U.S. 463, 474 (1980);

Stone v. Powell, 428 U.S. 465, 485

(1976); Gerstein v. Pugh, 420 U.S.

103, 119 (1975); Pettibone v.

Nichols, 203 U.S. 192, 207-208

(1906); Lascelles v. Georgia, 148

U.S. 537, 543 (1893); Cook v. Hart,

146 U.S. 183, 192 (1892) (all

applying Ker-Frisbie to domestic

seizures). The Brief for Respondent

discusses the decisions of this

Court distinguishing seizures in the

domestic and international

contexts. See, e.g., Nevada v.

Hall, 440 U.S. 410, 425 (1979)

(Extradition Clause of Article IV

"demonstrate[s] that ours is not a

union of 50 wholly independent

sovereigns").

- 40 -

Merino, and The Ship Richmond, there was

no state protest and thus no obligation

under customary international law for

the United States to return the person

and ships seized, respectively.2/ In

9/

See Ker v. People, 110 Ill. 627, 640

(1884) (“If the government of Peru

does not complain of the arrest of

defendant within its jurisdiction,

as an infraction of international

law, it does not lie in the mouth of

defendant to make complain on its

behalf."), aff'd, 119 U.S. 436

(1886). See also, e.g., Matta-

Ballesteros v. Henman, 896 F.2d 255,

260 (7th Cir.) ("Without an official

protest, we cannot conclude that

Honduras has objected to Matta's

arrest. Therefore Matta's claims of

violations of international law do

not entitle him to relief."), cert.

denied, 111 S. Ct. 209 (1990);

United States v. Toro, 840 F.2d

1221, 1235 (Sth Cir. 1988) ("neither

party to the treaty has objected");

United States v. Zabeneh, 837 F.2d

1249, 1261 (5th Cir. 1988) ("Because

neither Guatemala nor Belize

protested appellant's detention and

removal to the United States,

appellant lacks standing to raise

the treaties as basis for

challenging the court's

jurisdiction"); United States v.

Cordero, 668 F.2d 32, 38 (lst Cir.

1981) (neither “Panama [nJlor

Continued

- 41-

addition, in Ker it is unclear at best

whether the U.S. Government authorized

the abduction. See 119 U.S. at 438,

442-43 (the abductor was only directed

to receive Ker from Peruvian authorities

in compliance with the extradition

treaty). When there is no state

responsibility, as when the abductors

Venezuela objected to appellants'

departure from their territories");

United States v. Reed, 639 F.2d 896,

902 (2d Cir. 1981) ("The Bahamian

government has not sought his return

Or made any protest"); Waits v.

McGowan, 516 F.2d 203, 208 & n.9 (3d

Cir. 1975) ("The pleadings do not

allege that Canada has objected in

any way to the removal of Waits to

this country"); United States ex

rel. qudan v. Gengler, 510 F.2d 62,

67 (2d Cir.) (“the failure of

Bolivia or Argentina to object to

Lujan's abduction would seem to

preclude any violation of inter-

national law which might otherwise

have occurred"), cert. denied, 421

U.S. 1001 (1975); United States v.

Unverzagt, 299 F. 1015 (W.D. Wash.

1924), aff'd sub nom. Unverzagt v.

Benn, 5 F.2d 492 (9th Cir.), cert.

denied, 269 U.S. 566 (1925) (no in-

dication that Canada protested for-

cible abduction); State v. Brewster,

7 Vt. 118, 120-21 (1835) (same).

- 42 -

are private “bounty hunters" acting

outside the scope of any actual state

authority, the courts have retained

jurisdiction.20/ Likewise sevetal of

the cases relying on Ker and Frisbie

involved abductions occurring on the

high seas, so there was no violation of

foreign sovereignty.+1/ Finally, a

large number of cases were de facto

10/ See, e.g., Kear v. Hilton, 699 F.2d

181, 184 (4th Cir. 1983) (abduction

from Canada); Ex parte Lopez, 6 F.

Supp. 342, 344 (S.D. Tex. 1934)

(abduction from Mexico); Letter from

Robert Bacon, Acting Secretary of

State to the Mexican Charge (June

22, 1906), reprinted in H.R. Doc.

No. l, Part 2, 59th Cong., 2d Sess.

1121-22 (1909) (the Martinez incident).

1l/ E.g., United States v. Yunis, 681 F.

Supp. 891 (D.D.C. 1988), rev'd on

other grounds, 859 F.2d 953 (D.C.

Cir. 1989) (forcible abduction of

Jordanian by U.S. military in inter-

national waters); United States v.

Postal, 589 F.2d 862, 865 (5th

Cir.), cert. denied, 444 U.S. 832

(1979) (search and seizure by Coast

Guard of ship registered in the

Grand Cayman Island, in inter-

national waters).

- 43 -

eee

extraditions by officials of a foreign

state, acting within the scope of their

official duties.22/

12/ See, e.g., United States v. Kaufman,

858 F.2d 994, 1006 (Sth Cir. 1988)

("The Franks brothers were arrested

in Chetumal, Mexico, on July 24,

1986, by DEA agents and Mexican

federal judicial police"); United

States v. Verdugo-Urquidez, 856 F.2d

1214, 1215 (9th Cir. 1988)

("Verdugo-Urquidez's presence in the

United States is the result of his

arrest by Mexican police officers in

Mexico and his delivery by them,

across the border, into the waiting

arms of the United States govern-

ment."), rev'd on other grounds, 494

U.S. 259 (1990); United States v.

Toro, 840 F.2d 1221, 1229 (5th Cir.

1988) (“The Panamanian authorities

released the four men into Spasaro's

custody at Howard Air Force Base on

April 2, and Spasaro then placed the

men on a DEA plane bound for

Houston, where arrest warrants

issued on March 2, 1986, were

formally executed."); United States

v. Matta-Ballesteros, 700 F. Supp.

528, 532 (N.D. Fla. 1988) (“Indeed,

it appears that authorities of

Honduras either seized and removed

the defendant from their country or

aided and acquiesced in his

removal."); United States v. Evans,

667 F. Supp. 974, 979 (S.D.N.Y.

1987) (deportation by Bermuda

authorities); United States v.

Continued

- 44 -

Contrary to the Government's

assertion, the application of the

Rosenthal, 793 F.2d 1214, 1230 (llth

Cir. 1986) ("Rosenthal was arrested

on September 27, 1983, pursuant to

an expulsion order issued by

Colombian authorities."), cert.

denied, 480 U.S. 919 (1987); United

States v. Cordero, 668 F.2d 32, 35

(lst Cir. 1981) ("The Panamanians

arrested the four and held them in

jail. They were then sent by air to

Venezuela, and then were sent on to

Puerto Rico."); United States v.

Fielding, 645 F.2d 719, 723-24 (9th

Cir. 1981) (expulsion of American by

Peruvian officials); United States

v. Valot, 625 F.2d 308, 310 (9th

Cir. 1980) ("Thailand initiated,

aided and acquiesced in Valot's

removal to the United States");

United States v. Marzano, 537 F.2d

257, 270 (7th Cir. 1976), ("Tricker

took the defendants into custody for

various infractions of Grand Cayman

law and asked the defendants to

board a plane bound for Miami after

determining that the FBI was willing

to pay the cost of defendants’

airfare."), cert. denied, 429 U.S.

1038 (1977); United States v.

Lovato, 520 F.2d 1270, 1272 (9th

Cir.) (per curiam) (allegations that

expulsion, apparently of an

American, by Mexican Army personnel

“amount[ed] to little more than the

scenario of a routine expulsion by

Mexican officers of an undesirable

alien"), cert. denied, 423 U.S. 985

(1975); United States v. Cotten, 471

Continued

- 45 -

customary international law prohibition

on forcible abduction would not

“immuniz(e] a defendant from all

prosecution." Pet. Br. at 17. In the

present case, were the court of appeals

to be affirmed and Alvarez-Machain repa-

triated, the Mexican Government could

extradite him to the United States

either under the 1980 Extradition Treaty

pursuant to a proper request, or outside

the treaty if permitted under Mexican

law. Alternatively, the Mexican govern-

ment could prosecute him itself, which

it is willing to do. See J.A. at 70-71.

F.2d 744 (9th Cir.), cert. denied,

411 U.S. 936 (1973) (expulsion of

Americans by Vietnamese officials);

Stevenson v. United States, 381 F.2d

142, 144 (9th Cir. 1967) ("the

appellants were deported by Mexican

immigration authorities as un-

desirable aliens found in Mexico

under suspicious circumstances") ;

United States v. Sobell, 244 F.2d

520, 524-25 (2d Cir.), cert. denied,

355 U.S. 873 (1957) (rendition from

Mexico by Mexican police).

- 46 -

In either case, Alvarez-Machain would

enjoy no “immunity" from prosecution.

The sole question before this Court is

whether to uphold the sovereign right of

the Mexican Government to make that

choice.

B. Alvarez-Machain Has Standing to

Assert the U.S. Violation of

Customary International Law as

a Defense to Personal

Jurisdiction

By being forcibly abducted from

Mexico to face criminal charges in the

United States, Alvarez-Machain clearly

meets Article III requirements for

Standing: "“'he personally has suffered

some actual or threatened injury as a

result of the putatively illegal conduct

of the [Government],' .. . the injury

‘fairly can be traced to the challenged

action' and ‘is likely to be redressed

by a favorable decision.'" Valley Forge

Christian College v. Americans United

- 47 -

for Separation of Church and State,

Inc., 454 U.S. 464, 472 (1982)

(citations omitted).

To be sure, the assertion of the

customary international law proscription

on forcible abduction raises the

prudential concern that a party

“generally must assert his own legal

rights and interests, and cannot rest

his claim to relief on the legal rights

Or interests of third parties." Id. at

474. Neither policy animating that

concern applies here. One is that "the

courts should not adjudicate such rights

unnecessarily, and it may be that in

fact the holders of those rights either

do not wish to assert them, of will be

able to enjoy them regardless of whether

the in-court litigant is successful or

not." Singleton v. Wulff, 428 U.S. 106,

113-14 (1976). The Mexican Government

clearly wishes to assert its right under

- 48 -

customary international law to have

Alvarez-Machain repatriated. It most

likely will not be able to enjoy this

right if Alvarez-Machain is denied

standing, for the extraordinary measures

the DEA took to seize him imply that the

agency has no intention to negotiate his

release. See United States v. Caro-

Quintero, 745 F. Supp. 599, 601-03 (C.D.

Cal. 1990) (describing events leading up

to the abduction).

The second policy is that "third

parties themselves usually will be the

best proponents of their own rights.

The courts depend on effective advocacy,

and therefore should prefer to construe

legal rights only when the most

effective advocates of those rights are

before them." Singleton, 428 U.S. at

114. This requires determining whether

"the third party can reasonably be

expected properly to frame the issues

- 49 -

and present them with the necessary

adversarial zeal." Secretary of State

of Maryland v. Joseph H. Munson Co., 467

U.S. 947, 956 (1984). In forcible

abduction cases, this requirement should

virtually never restrict standing

because the sole issues to be framed, as

Alvarez-Machain has done here, are the

fact of the abduction, U.S. respon-

Sibility for it, and adequate protest

from the aggrieved state. In addition,

he is "the right's best available

proponent," Singleton, 428 U.S. at 116,

as it is difficult to see how the

Mexican Government would be able to

bring its own action in federal court to

enforce its sovereign rights. See

Restatement § 902 (interstate claims and

remedies).

Contrary to the Government's

assertion, Pet. Br. at 36-37, the fact

that states typically have diplo-

- 50 -

matically settled disputes arising from

forcible abduction does not mean

Alvarez-Machain lacks standing. This is

so because the Mexican diplomatic

protest that establishes the inter-

national obligation of the United States

to return Alvarez-Machain also satisfies

the prudential concern for jus tertii

standing in federal courts. Thus, as

the Government notes, id. at 36, the

Mexican Government could withdraw its

protest -- either because it reached a

diplomatic settlement or for any other |

or no reason -- and Alvarez-Machain

would thereby lose his standing to

assert the violation of Mexican

sovereignty.

Third-party standing to raise

customary international law as a defense

to criminal prosecution is hardly new to

U.S. jurisprudence. In particular,

courts have long allowed diplomats

- 51-

third-party standing to enforce

diplomatic immunity, well before the

adoption of express provisions to that

effect in the Vienna Convention on

Diplomatic Relations, T.I.A.S. 7502, 23

U.S.T. 3227 (entered into force in U.S.

Dec. 13, 1972). See, e.g., Dupont v.

Pichon, 4 U.S. (4 Dall.) 321 (1805)

(allowing French chargé d'affaires to

plead diplomatic immunity as defense to

imprisonment in action on official

debt); Restatement Ch. 6. Like the

prohibition on forcible abduction,

diplomatic immunities "are not the

personal rights of the individual agent,

but are conferred by international law

on the sending state," which may waive

them. Restatement § 464 comment j. See

Davis v. Packard, 32 U.S. (7 Pet.) 276,

284 (1833); see generally United States

v. Enger, 472 F. Supp. 490, 504-006

(D.N.J. 1978) (history of customary

- 52 -

international law of diplomatic

immunity); 7 M. Whiteman, Digest of

International Law § 43, at 421-36 (1970)

(surveying state practice).

CONCLUSION

The forcible abduction of Alvarez-

Machain from Mexico, at the behest of

the U.S. Government and leading to a

formal diplomatic protest from the

Mexican Government, violated customary

international law, which requires that

he be returned. These principles of

customary international law are U.S. law

and are not displaced by the Ker-Frisbie

doctrine or otherwise. The judgment of

the court of appeals should be affirmed.

- 53 -

Respectfully submitted,

Stephen P. Doyle

*Paul Nielsen

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

Counsel for Amicus

Curiae

*Counsel of record

Of Counsel:

Steven M. Schneebaum

Janelle M. Diller

INTERNATIONAL HUMAN RIGHTS

LAW GROUP

1601 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 232-8500

Dated: March 5, 1992

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