Federal government kidnapping a person from a foreign land.

How does the government return a person to United States from a foreign country if it believes that he committed a crime in United States. The answer is simple – extradition, the process – not so much. It takes a lot of negotiation and time to bring a person back to United States. Think of recent cases of Julian Assange, Edward Snowden, Miguel Rodriguez Orejuela, and Viktor Bout.

This article is not about fair play and the politics of extraditions. Sometimes America does not follow the international rules, it simply kidnaps a person and makes them stand trial. United States federal agents (CIA, FBI, DEA, DOD, etc.) travel to a foreign county and abduct a person they believe committed a crime on US territory. In order to kidnap and fly a person back to US, the agents may lure the foreign national or physically force him on a plane (and in some cases even use torture and brutality to a point that their “conduct […] shocks the conscience.” United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974)). This article is also not about the arguments and political tension between countries that often ensues. I’m a criminal defense attorney and care about the rights of the accused. I care specifically, what are the remedies for the accused (those who are suppose to be presumed innocent if and until proven guilty)?

One would think that a government that “violates” international laws by trespassing on foreign land and kidnapping a foreign citizen would have to release that person. The US courts should not have jurisdiction over a person who was brought to stand trial illegally. After all, “[s]ociety is the ultimate loser when, in order to convict the guilty, it uses methods that lead to decreased respect for the law.” United States v. Toscanino, 500 F.2d 267, 274 (2d Cir. 1974). Unfortunately, United States does not follow this logical approach, instead encouraging a lawless behavior by the law enforcers themselves. Government’s power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him.

Below, I will provide a couple of fascinating governmental abductions and the cases that went all the way to the United States Supreme Court.

I. Kidnapping from Peru- the birth of the Abduction Doctrine

Frederick M. Ker was indicted in United States on the charges of embezzlement and larceny. He was a citizen of Lima, Peru, and was in fact kidnapped and brought to United States against his will. The United States governemnt actually went through a hassle of getting an extradition from Peru. When US agent, Henry G. Julian, he did not present any extradition papers and instead forcibly and with violence arrested Mr. Ker.

The court held that a forcible transnational abduction falls outside of the scope of a 1870 extradition treaty between US and Peru. After all, the extradition paper were never provided to the Peruvian government. The question of how far his forcible seizure in another country, and transfer by violence, force, or fraud to this country, could be made available to resist trial in the state court for the offense now charged upon him, is one which we do not feel called upon to decide; for in that transaction we do not see that the constitution or laws or treaties of the United States guaranty him any protection. Ker v. People of State of Illinois, 119 U.S. 436, 444 (1886).

Essentially, Ker stand for the proposition that a person will stand trial in US if the the extradition treaty in question does not prohibit abduction.

It must be remembered that this view of the subject does not leave the prisoner, or the government of Peru, without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnaping, and, on demand from Peru, Julian, the party who is guilty of it, could be surrendered, and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment. Whether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case, which we cannot here consider. Ker v. People of State of Illinois, 119 U.S. 436, 444, 7 S. Ct. 225, 229-30, 30 L. Ed. 421 (1886).

So far we learned that a person will still stand trial in US, but he may recover civilly against the person who made an illegal arrest.

Click here to read the full text of Ker v People of State of Illinois.

II. Violation of the Federal Kidnapping Act?

Shirley Collins relied on the Due Process Clause and the Federal Kidnapping Act when arguing to be released from prison. The court in Frisbie v. Collins stated thta the courts have never departed from the rule announced in Ker v. Illinois, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. Frisbie v. Collins, 342 U.S. 519, 522 (1952).

This case solidified the notion that the government may kidnap a person (who may later be found innocent) and bring him to stand trial in US. This became known as the Ker-Frisbee doctrine.

III. Kidnapping by DEA from Mexico

Dr. Humberto Alvarez-Machain, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent’s pilot. United States v. Alvarez-Machain, 504 U.S. 655 (1992). The court held, the fact of respondent’s forcible abduction does not prohibit his trial in a United States court for violations of this country’s criminal laws. The court once again relied on Ker-Frisbee Doctrine to come to this result.

Treaty Invocation?

A defendant may not be prosecuted in violation of the terms of an extradition treaty. United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant’s presence is procured by means of a forcible abduction. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. Thus, if the Extradition Treaty does not prohibit respondent’s abduction, the rule of Ker applies and jurisdiction was proper. It also encourages the US agents not to follow extradition laws because no one will scrutinize the agent’s behavior when the extradition laws are avoided.

Neither the Treaty’s language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms. The Treaty says nothing about either country refraining from forcibly abducting people from the other’s territory or the consequences if an abduction occurs. In addition, although the Mexican Government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty’s current version contains no such clause. This is important because Unlike Ker and Frisbee, in this case the Mexican government made protests against the kidnapping of the Mexican national and even requested for an extradition of the abducting DEA agents. Many politicians and foreign rights advocates continue to fear that these line of cases encourages lawless behavior by the US agents.

Finally, general principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent’s argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself.

Interesting Side Note! Remember when the courts kept reminding us that the defendant may still seek civil damages against the agents for illegally kidnapping him. Also remember that some people are actually innocent even though charged with a crime. In this case, the Alvarez-Machain was actually acquitted. He then decided to bring a civil case against the United States government citing kidnapping, arbitrary arrest, and detention (well all the causes of actions that the court previously stated were appropriate).

Alvarez-Machain took his civil case all the way to the U.S. Supreme Court. The same Court that stated that he could have a legal remedy, now ruled that Alvarez-Machain was not entitled to recover damages. The court held that claims founded on any injury suffered in a foreign nation were barred by the Federal Tort Claims Act’s exception to waiver of sovereign immunity for claims arising in a foreign country, regardless of where the tortious act transpired. In an absolutely crazy turn of event, the Court simply changes it mind on civil damages.

To read the full text of the case click US v Alvarez-Machain.

IV. Abduction from Pakistan – Nice Summary Case.

This is not a Supreme Court Case, but it nicely goes over possible arguments that an individual may bring. Gunman kills CIA agents and flees to Pakistan. Several years later, FBI agents dressed in “native clothing,” apprehended a defendant, Mir Aimal Kasi, in a hotel room in Pakistan. After a few minutes of struggle, defendant was subdued, handcuffed, and gagged.

The government then identified the defendant through the use of fingerprints. During the scuffle, defendant sustained “minor lacerations” to his arm and back. When the agents left the hotel with defendant in custody, he was handcuffed and shackled, and a hood had been placed over his head. Kasi v. Com., 256 Va. 407, 414(1998).

Flight to US

During the 12–hour flight to Fairfax County, Garrett first conducted a “background” conversation with defendant, discussing “his life in the United States, where he lived, where he worked.” Kasi v. Com., 256 Va. 407, 415 (1998). After the background conversation, Garrett advised defendant of rights according to Miranda v. Arizona, 384 U.S. 436 (1966). After Miranda, the defendant confessed. He later unsuccessfully argues coercion and involuntariness of statements.

The defendant argues the “abduction/seizure was conducted outside and in express violation of the Extradition Treaty between the United States and Pakistan and without invoking the procedures set out by the laws of each country” and was contrary to law. He says the “sanction” for violation of the treaty should be reversal of the capital murder conviction and “repatriation to Pakistan without prejudice for a new trial.” Kasi v. Com., 256 Va. 407, 416 (1998). Simply stated, he wants to be returned to Pakistan, then extradited without violation of the international laws and given a new trial. Kasi makes similar argument to Ker and Alverez, and he similarly loses.

4th Amendment Protection?

In United States v. Verdugo–Urquidez, 494 U.S. 259, 266(1990), the Supreme Court held: “The available historical data show … that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.” The Court also said, “[t]here is likewise no indication that the Fourth Amendment was understood … to apply to activities of the United States directed against aliens in foreign territory or in international waters.” Id. at 267. So 4th Amendment would not apply to Kasi because he is a not a citizen of the US and was abducted from a foreign land.

Vienna Convention?

Defendant also relied on Article 36(1) of the Vienna Convention on Consular Relations and Optional Protocol on Disputes (Vienna Convention), 21 U.S.T. 77, T.I.A.S. No. 6820 (Apr. 24, 1963), and his claim that its alleged violation requires suppression of his confession. Defendant conceded in the trial court there is no reported authority for the idea that a violation of the treaty creates any legally enforceable individual rights. And, the provisions of the document create no such rights. Indeed, the preamble states that the “purpose … is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.” Article 36 merely deals with notice to be furnished to the consular post of a national’s state when the national is arrested or taken into custody in a foreign state. Kasi v. Com., 256 Va. 407, 419, 508 (1998). So Vienna Convention merely protects the governments and not the people like Kasi.

To read the full text of the case click Kasi v Com.

V. Narrow Exception in Sight?

There is a caveat, this case is not a Supreme Court case. It was never affirmed the the Supreme Court, and Alvarez comes after this case in time. An Italian citizen is abducted from his home in third country. On the way to US he is tortured, and severely. “Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too categorically. This is conduct that shocks the conscience.” United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974).

In this case, the court stated that Ker-Frisbie’ rule cannot be reconciled with the Supreme Court’s expansion of the concept of due process. Under the modern view of Due Process, the courts agree that it protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part.

In all previous cases, the courts were concerned whether the evidence should be been excluded (e.g., Mapp, Miranda, Wong Sun, Silverman). Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488 (1963).

When an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, which guarantees ‘the right of the people to be secure in their persons . . . against unreasonable . . . seizures,’ the government should as a matter of fundamental fairness be obligated to return him to his status quo ante. United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 1974). Notice, that the court is willing to extend the 4th amendment protection to a non-citizen.

“Faced with a conflict between the two concepts of due process, the one being the restricted version found in Ker-Frisbie and the other the expanded and enlightened interpretation expressed in more recent decisions of the Supreme Court, we are persuaded that to the extent that the two are in conflict, the Ker-Frisbie version must yield.”

The court ultimately declined to exercise jurisdiction over a defendant whose presence has been secured by force or fraud. United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 1974).

To read the full text of the case click US v Toscanino.

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*This article and the information contained herein have been prepared by attorneys at LAWSTACHE LAW FIRM for informational purposes only and is not to be construed as a legal advice.