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BRIA 10 4 b Should Nations Have the Rights to Kidnap Criminal Suspects?

CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Right in Action
Fall 1994 (10:4)
Updated July 2000

The U.S. Supreme Court

BRIA 10:4 HomeFDR Tries to "Pack" the Supreme Court  |  Should Nations Have the Rights to Kidnap Criminal Suspects?
  Update on the Supreme Court

SHOULD NATIONS HAVE THE RIGHT TO KIDNAP CRIMINAL SUSPECTS?

In 1960, Israeli Secret Service agents found ex-Nazi leader Adolf Eichmann hiding in Argentina and took him captive. Eichmann has been responsible for organizing the deportation of European Jews to Nazi death camps where millions died during World War II. The Israeli agents transported Eichmann to Jerusalem where he was put on trial. Eichmann challenged the right of the Israeli court to try him because he had been kidnapped and illegally taken to Israel. But the Israeli prosecutor pointed to a number of American and British cases to argue that it does not matter if a defendant is kidnapped from a foreign country. The Israeli court agreed, and Eichmann's trial proceeded. Later, found guilty by an Israeli court in 1962, he was executed by hanging.

Thirty years later, the U.S. Supreme Court faced a similar situation involving a criminal suspect, a Mexican citizen, who had been seized by U.S. and forced to stand trial in this country. Like Eichmann, the Mexican defendant challenged the right of the court to try him. The Supreme Court had to decide this issue. But in doing so, it touched on the broader question of whether nations should have the right to seize criminal suspects in foreign countries.

A Murder and a Kidnapping

Special Agent Enrique Camarena was a member of the U.S. Drug Enforcement Agency (DEA) operating in Guadalajara, Mexico. Camarena was working in a cooperative project with the Mexican government to capture top drug traffickers. On February 7, 1985, members of the Guadalajara drug cartel kidnapped him. Taking him to a house in the city, they brutally tortured him to death while questioning him about DEA activities.

Back in the United States, DEA and other U.S. government officials demanded to participate in the murder investigation. U.S. officials had little faith in the Mexican police, believing that they had been bribed by the drug cartel.

American DEA leaders began investigating the involvement of Dr. Humberto Alvarez-Machain. Alvarez reportedly had been hired by the Guadalajara drug traffickers to provide medical services as needed. The DEA claimed it had evidence that Alvarez injected Camarena with a stimulant to keep him conscious during the torture. On January 31, 1990, a Los Angeles federal grand jury indicted Alvarez for his alleged part in the Camarena killing. But Alvarez was in Mexico.

DEA agents in charge of the Camarena offered their Mexican a $50,000 reward for delivering Alvarez to the United States. A group of about a half-dozen former and current Mexican police officers agreed to arrange the abduction. This team of Mexican kidnappers, as determined later by a U.S. federal court, had actually became paid agents of the U.S. government.

On April 2, 1990, members of the team kidnapped Alvarez at gunpoint from his Guadalajara medical office. They took him to a house where he claimed he was tortured and injected with some substance. The next day, they flew him in a private plane to the El Paso, Texas, airport where DEA agents arrested him.

Mexico protested the kidnapping as a violation of its territory and laws. Mexican police, however, continued investigating Camarena's murder and eventually made a number of other arrests.

In the meantime, Alvarez was brought before a federal district court in Los Angeles. The judge, however, ruled that the kidnapping of Alvarez violated the U.S. extradition treaty with Mexico and, therefore, he should be returned home. An extradition treaty is an agreement between nations to follow certain procedures when one country is seeking a criminal suspect in the other's territory. The U.S. government appealed this ruling all the way to the Supreme Court. Strongly opposed to the DEA actions, the Mexican government filed an amicus curiae ("friend of the court") brief that argued the kidnapping was a violation of international law.

Before the Supreme Court

On June 15, 1992, the U.S. Supreme Court decided by a 6–3 majority that the kidnapping of Dr. Alvarez from Mexico did not prohibit his trial in a U.S. court. Writing for the majority, Chief Justice William H. Rehnquist cited an 1886 Supreme Court decision that the authority of a court is not weakened if a defendant is brought before it as a result of "forcible abduction." [Ker v. Illinois, 119 U.S. 436 (1886)] Rehnquist went on to hold that the U.S. extradition treaty with Mexico was not a factor in the case because it "says nothing about the obligations of the United States and Mexico to refrain from forcible abductions. . . ." [United States v. Humberto Alvarez-Machain, 112 S.Ct. 2188 (1992)]

Writing in dissent, Justice John Paul Stevens pointed out that the 1886 case used by Chief Justice Rehnquist to justify his opinion actually involved a private bounty hunter, not U.S. government agents. Justice Stevens found this difference to be important. In the Alvarez's kidnapping, it was agents of the U.S. government, not a private citizen without government support who illegally violated Mexican territory. By being involved in the kidnapping Stevens concluded, the United States violated the extradition treaty with Mexico. The treaty, he said, "would serve little purpose if the requesting country could simply kidnap the person."

Justice Stevens called the majority opinion a "monstrous decision" that disregards the rule of law and sets a poor example for other countries to follow.

Negative Reactions

Many countries, especially in Latin America, condemned the Supreme Court's ruling. Mexico announced that it was suspending a major part of its role in cooperating with the United States to stop drug traffickers.

Argentine President Carlos Menem called the decision "a horror." Canada declared that it would not tolerate similar abductions from its soil. In August 1992, a special committee of the Organization of American States (of which the United States is a member) criticized the Alvarez-Machain decision as ignoring "the fundamental principle of international law, namely, respect for the territorial sovereignty of states."

A spokesman for the U.S. Department of State replied that the Alvarez-Machain decision did not "represent a `green light' for the United States to conduct operations on foreign territory." But the spokesman went on to say, "At the same time we are not prepared categorically to rule out unilateral action." He explained that in "extreme cases," like when another country protects a terrorist who has attacked Americans, a kidnapping may be justified as a matter of "self-defense."

In December 1992, Alvarez was finally put on trial in Los Angeles. But, in a final twist, the judge threw out the case after ruling that the prosecution's evidence was based on "the wildest speculation." Dr. Alvarez was then returned to Mexico.

For Discussion and Writing

  1. Why do you think neither Israel nor the United States followed normal diplomatic procedures and, instead, resorted to kidnapping Adolf Eichmann and Humberto Alvarez-Machain? Do you agree or disagree with the kidnapping in each case?
  2. In the Alvarez-Machain Supreme Court decision, Chief Justice Rehnquist argued that since the extradition treaty with Mexico did not specifically prohibit the abduction of criminal suspects, the United States did not violate the treaty. Do you agree or disagree with his reasoning? Explain.
  3. Explain what your reaction would be to the following situation: Mexico decides to hire kidnappers in the United States to abduct DEA agents accused of setting up the kidnapping of Dr. Alvarez.

A C T I V I T Y

Should Nations Have the Right to Kidnap Criminal Suspects?

In this activity, the class will debate the question above from four viewpoints.

A. Divide the class into the following five role groups:

  1. U.S. Drug Enforcement Agency (DEA), which will argue the "yes" side.
  2. U.S. Department of State, which will also argue the "yes" side.
  3. Attorneys Representing Humberto Alvarez-Machain, who will argue the "no" side.
  4. Government of Mexico, which will also argue the "no" side.
  5. Judges Representing World Opinion, who will listen to the debate, ask questions, and decide the question by majority vote.

B. Preparation:

  1. Each group should re-read the article carefully and meet in debating groups.
  2. Debating groups should find reasons and arguments supporting their viewpoints and try to anticipate the arguments of the other side. Judges should prepare questions to ask each debating group.

C. Debate:

  1. Select one judge to act as chief judge to recognize speakers, watch the time, and announce the final decision on the debate question.
  2. Give each debating group an equal amount of time to make an opening presentation.
  3. After each group has made its opening presentation, each judge should have one or more questions prepared to ask the group.
  4. After the judges have finished asking their questions, members of other groups may be recognized to ask questions or refute arguments.
  5. At the end of the debate, each group should have one minute to make a closing argument.

D. Judgment:

  1. The judges will meet to discuss and then vote on the debate question.
  2. The chief judge will announce the judges' decision and all judges will then give reasons for their individual votes.