03 Dec The UK Discovers Alvarez-Machain!
Apparently, the British are a little rusty when it comes to US constitutional law. They’re shocked — just shocked! — to learn that the US can kidnap a British citizen suspected of a crime other than terrorism even though the US and UK have an extradition treaty:
A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.
The admission will alarm the British business community after the case of the so-called NatWest Three, bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers at British Airways and BAE Systems, are under investigation by the US authorities and could face criminal charges in America.
Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects.
The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.
[snip]
The US government’s view emerged during a hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher, and his wife Beatrice.
The Tollmans, who control the Red Carnation hotel group and are resident in London, are wanted in America for bank fraud and tax evasion. They have been fighting extradition through the British courts.
During a hearing last month Lord Justice Moses, one of the Court of Appeal judges, asked Alun Jones QC, representing the US government, about its treatment of Gavin, Tollman’s nephew. Gavin Tollman was the subject of an attempted abduction during a visit to Canada in 2005.
Jones replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.
The British had “commonly assumed” that the US can only kidnap for purposes of extraordinary rendition? Really? The Supreme Court’s reasoning in United States v. Alvarez-Machain, 504 U.S. 655 (1992) — that an extradition treaty permits kidnapping if it does not expressly forbid it — certainly deserves to be criticized, but it’s not like the US has kept the decision secret for the past 15 years. After all, you can buy commercial constitutional law outlines on Amazon’s UK website…
Ummm… I’m personally more surprised that the USA is reserving the right to launch an armed attack against my country just because it wants a criminal.
We promise to do our best not to hurt anyone. Really. And if you don’t want to be attacked, you shouldn’t harbor criminals.
Kevin, I would have thought Alvarez-Machain only governed the issue of whether an abductee could be tried in the US. The Court held that he/she could, since – failing, as you say, any express provision in an extradition treaty (U.S. v. Rauscher, 119 U.S. 407) – the illegality of the abduction was not an impediment, according to the Ker-Frisbie-doctrine (Ker v. Illinois, 119 U.S. 436; Frisbie v. Collins, 342 U.S. 519). Alvarez-Machain said, at 669-670: Respondent and his amici may be correct that respondent’s abduction was “shocking,” Tr. of Oral Arg. 40, and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes, App. 33-38, and the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch. 16 We [504 U.S. 655, 670] conclude, however, that respondent’s abduction was not in violation of the Extradition Treaty between the United States and Mexico, and therefore the rule of Ker v. Illinois is fully applicable to this case. The fact of respondent’s forcible abduction does not therefore prohibit his trial in a court in the United States for… Read more »
I dimly recall that, immediately after Alvarez-Machain, and received a distinctly stormy reception in international circles, the Bush I administration promised that it would not use its new found power, as it were. This may well have been mentioned in the article by Wilder that I have cited above, or in B. Baker and V. Röben, ‘To Abduct or to Extradite: Does a Treaty Beg the Question? The Alvarez-Machain Decision in U.S. Domestic Law and Domestic Law’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 53 (1993), pp. 657 et seq.. Does anyone recall if this is true, or even what the precise import (scope and – continued – relevance) of that statement might have been?
Maybe the Brits will also invalidate extradition treaties
Not likely, unfortunately. British judges can’t even apply international treaties, unless they are transposed to domestic law by statute. Once they are, it is the statute that must be applied, not strictly the treaty as such. Acts of Parliament are the supreme source of law in the UK (there being no constitution), and therefore cannot be judicially invalidated.
Tobias–
Your recollection is correct. The Bush I administration repudiated kidnapping as a method of extradition. A couple of years later, the Clinton administration signed an agreement with Mexico in which both sides committed not to engage in cross-border abductions. (I am not sure if the agreement was ever submitted to the Senate for advice and consent.) I don’t recall what, if anything, was done more broadly with other states with whom the US had extradition treaties.
Peggy, Thank you (and my apologies for the typos above). I suppose the Bush I declaration could not have been binding anyway, so it might not actually be all that significant, except politically. To be sure, an express assurance of the non-repetition of conduct accepted as having been unlawful may be binding, in a way. Germany had requested just such an assurance in LaGrand, and the Court may be seen as having reacted to that by ordering the US, in the dispositif of the judgment, not to repeat its wrongful actions as against German citizens. That could arguably indicate that an assurance of non-repetition would similarly have been binding, as such. But that, it seems to me, could not have been on Nuclear Tests grounds. It would follow more immediately from the unlawfulness of the previous conduct, and the acceptance of that fact by the acting State (as a kind of estoppel?). I tend to doubt that the Bush I declaration would have adverted to the legal issues involved. But one thing seems to remain open to doubt: has Alun Jones QC been instructed by the USA, his client, in terms allowing him to make any statement about US policy?… Read more »