The UK Discovers Alvarez-Machain!

by Kevin Jon Heller

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…

http://opiniojuris.org/2007/12/03/the-uk-discovers-alvarez-machain/

8 Responses

  1. 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.

  2. 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.

  3. 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 violations of the criminal laws of the United States.

    The legality or otherwise of the kidnapping was therefore neither here nor there. That matter was reserved for another day, when Dr Alvarez-Machain, after his acquittal on a submission of no case to answer (probably the wrong phrase – sorry), sued for damages. As is well known, that suit resulted in Sosa v. Alvarez-Machain, 542 U.S. 692. At that stage, the Supreme Court held that the abduction had not violated international cognisable under the ATCA, under the fairly demanding test set out in that opinion. It did not, however, apply international law as such (customary or ICCPR). The Circuit Court (331 F.3d 604) had more or less done that (as regards the customary law of human rights, but not that concerning the illegality of one State exercising authority in the territory of another – Lotus), and concluded that the abduction had indeed been quite unlawful. That is perhaps unsurprising.

    So, the abductions contemplated before the Court of Appeal would certainly be unlawful, but would not furnish the abductee with a defence once he or she had arrived in federal court.

    Of course, saying that a violation of the law carries no consequences for the guilty party (notably in the sense of ex injuria non oritur jus) is a lot like saying that there is no violation at all. But only really to confirmed cynics (not you, I guess, but quite possibly the government): the rule of law should absolutely prevent US agents from contemplating abductions, even if US courts wouldn’t be in a position to mind all that much after the event. Alvarez-Machain does not absolve anyone from this aspect; neither does Sosa.

    On that basis, I can see why there might be some surprise at the suggestion that abductions are available to US agents as a matter of policy. Indeed, surprise is putting it very much at the lower end of the scale of possible expressions…

    I would note, however, that the article in The Times that you linked to does not say if Moses LJ was surprised at the answer given by Alun Jones QC, or whether it was Moses LJ who had ‘[u]ntil now … assumed that US law permitted kidnapping only in the extraordinary rendition of terrorist suspects.’ Assuming that his Lordship would have shared your – no doubt practical – assessment of the effect of Alvarez-Machain, that would be unlikely. He is certainly likely to know the case, which did feature prominently in the leading British case on the matter, R v. Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 AC 42. That case happily did not follow Alvarez-Machain, but instead made rather more of the dissent.

    If there had been any official (judicial) surprise, I would nonetheless have great sympathy for that. Alvarez-Machain was sharply criticized at the time by a number of foreign governments (esp. in the OAS; references in A.L. Wilder, ‘The Supreme Court Decision in United States v. Alvarez-Machain’, Virginia Journal of International Law 32 (1991-1992), pp. 979, 992-994), and many courts before and since have declined to take anything like a similar course, effectively replacing Ker-Frisbie (or: male captus bene detentus) with some rule of abuse of process or similar, at least where the prosecuting State had committed or joined the illegal conduct: R v. Hartley [1978] 2 NZLR 199, 216-217 (Court of Appeal of New Zealand); Levinge v. Director of Custodial Services, Department of Corrective Services (1987) 89 FLR 133, 142-143, 150, 153 (Court of Appeal of New South Wales, Australia); State v. Ebrahim, ILR 95 (1994), pp. 417, 445 (Supreme Court of South Africa, 1991); Beahan v. State, ILR 103 (1996), pp. 203, 214 (Supreme Court of Zimbabwe, 1991). International criminal courts have taken a similar approach (Prosecutor v. Nikolic, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, ICTY Trial Chamber; Prosecutor v. Lubanga Dyilo, Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a) of the Statute, ICC Pre-Trial Chamber (at pp. 9-10)), while nonetheless balancing the rights of the accused against the (strong) societal interest supporting prosecution (Prosecutor v. Nikolic, Decision on Interlocutory Appeal concerning Legality of Arrest, ICTY Appeals Chamber, para. 26; cf. Trial Chamber, supra, para. 95, and also Attorney-General of the State of Israel v. Adolf Eichmann, ILR 36 (1968), pp. 5, 306-7 (Supreme Court of Israel); R v. Mullen [2000] QB 520, 534-537 (CA)).

    In fact, I would have great sympathy for the view that Alvarez-Machain always was a ‘monstrosity’, as the dissent memorably put it. It certainly has become more, not less, so in the meantime; and if the case really has been taken as giving carte blanche to the executive to go about kidnapping people as it pleases – and it may be assumed that it has been so read – that surely is the last straw.

  4. 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?

  5. Maybe the Brits will also invalidate extradition treaties

  6. 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.

  7. 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.

  8. 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? Has he, in fact, done so? Is it therefore now really US policy – contrary to Bush I – to maintain abduction as an option? Or has Mr Jones simply stated what he thought to have been the effect of Alvarez-Machain, and has this been reported with more than a hint of sensationalism? I rather suspect it is the latter. The question by Moses LJ appears to have been very much an incidental point at the hearing (relating to the treatment of the appellants’ nephew, Mr Gavin Tollman, by the US while in Canada), so the matter probably did not feature too prominently in Mr Jones’s discussions with US agents (if any).

    That would suggest that Mr Jones’s remarks have been blown somewhat out of proportion. Also, his remarks were in relation to an event in Canada that could not actually be described as anything like an Alvarez-Machain-style abduction (it wasn’t nice, but it involved the Canadian authorities in what a judge called a ‘sinister trap’).

    The commitment of Bush I, then, may not stand as firm as it might in the terrorist context, but it may still reflect the true position in the sense that US authorities will not be too ready to go and offend other States by abducting people. They must, at least, know that such action is not without its costs (whatever SCOTUS may make of it).

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.