When Rights Fall in a Forest . . The Ker-Frisbie Doctrine and American Judicial Countenance of Extraterritorial Abductions and Torture

Penn State International Law Review Volume 9 Number 2 Dickinson Journal of International Law Article 8 1991 When Rights Fall in a Forest . . The Ker-Frisbie Doctrine and American Judicial Countenance of Extraterritorial Abductions and Torture H. Moss Crystle Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Crystle, H. Moss (1991) "When Rights Fall in a Forest . . The Ker-Frisbie Doctrine and American Judicial Countenance of Extraterritorial Abductions and Torture," Penn State International Law Review: Vol. 9: No. 2, Article 8. Available at: http://elibrary.law.psu.edu/psilr/vol9/iss2/8 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . When Rights Fall in a Forest . . The Ker-Frisbie Doctrine and American Judicial Countenance of Extraterritorial Abductions and Torture I. Introduction On August 10, 1990 a federal judge in Los Angeles made a ruling which shocked the government and called into question significant aspects of current American executive policies. Judge Edward Rafeedie of the United States District Court for the Southern District of California held that the abduction' of a Mexican National by paid agents of the United States violated a valid extradition treaty between the United States and Mexico.2 Judge Rafeedie also held that an objection by a foreign government to a violation of an extradition treaty between the United States and that foreign government precludes jurisdiction by American Courts. Invoking a seldom used exception to the one hundred year-old Ker-Frisbie doctrine, Judge Rafeedie ordered the Mexican National released. The Ker-Frisbie doctrine is the American formulation of the Roman maxim 'male captus, bene detentus', which says that an illegal apprehension will not preclude the exercise of jurisdiction. 3 Though the sweeping judicial acceptance of irregular apprehensions of persons wanted for criminal prosecution tolerated by Ker-Frisbie has been long and roundly criticized," the doctrine continues to be I. Though some commentators describe this phenomenon as an "extralegal" abduction, because the act of the abduction inevitably violates the domestic law of the asylum state, this Comment will refer to the abduction of Dr. Alvarez and other criminal defendants as an illegal abduction. The terms "abduction" and "kidnapping" will be used interchangeably. 2. 'Under article 9(2) of the Treaty of Extradition, May 4, 1978, United States-Mexico, 31 U.S.T. 5059, T.I.A.S. No. 9656, if an extradition request is refused, "the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that the Party has jurisdiction over the offense." 3. See Bassiouni, Unlawful Seizures and Irregular Rendition Devices as Alternatives to Extradition, 7 VAND. J.TRANSNAT'L L. 25, 45, (1973) for the argument that male captus, bene detentus is superceded by two higher maxims of Roman Law; nunquam decurritur ad extraordinarium sed ubi deficit ordinarium ("never resort to the extraordinary until the ordinary fails") and ex injuria ius non oritur i("no right can arise from the violation of law"). 4. See Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued 84 AM. J. INT'L L. 444, (1990); Williams, Criminal Law - Jurisdiction Illegal Arrest - Due Process Violation of International Law, 53 CAN. BAR REV. 404 (1981), Garcia-Mora, Criminal Jurisdiction of a State over Fugitives Brought From A Foreign Country by Force or Fraud: A Comparative Study, 32 IND. L.J. 265 (1952)(hereinafter GarciaMora), Dickinson, Jurisdiction Following Seizure or Arrest in Violation of International Law, DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 9:2 utilized in securing American jurisdiction over accused drug traffickers, 5 terrorists, 6 and an occasional Florida land salesman. 7 This Comment reviews the theories of dismissal which were available to Judge Rafeedie and analyzes the theory he chose. To understand the Judge's reasoning, Part One relates the facts of the abduction of the Mexican National, Dr. Humberto Alvarez Machain. Part Two describes the history of the Ker-Frisbie doctrine and its exceptions, and evaluates them in light of the state-action analysis traditionally used in "domestic" American constitutional law. Part Three goes on to describe alternative theories, rejected by Judge Rafeedie, which more resolutely denounce international abductions and torture. The Comment observes that Judge Rafeedie's reasoning emphasized U.S. treaty obligations over international law and human rights. The Comment concludes by suggesting that the Ker-Frisbie doctrine has outlived its use and only serves to encourage circumvention of the very laws courts are bound to uphold. II. The Abduction On February 7, 1985, DEA agent Enrique "Kiki" Camarena was kidnapped in Mexico. 8 A month later his mutilated body was found sixty miles outside of Guadalajara." Investigations suggested that Camarena had been killed in retaliation for exposing illegal importation of marijuana from Mexico to the United States.10 A prominent Guadalajara- physician, Dr. Humberto Alvarez Machain, was alleged to have administered drugs to Camarena to keep him alive during the torture and interrogation which preceded his death." The United States wanted to prosecute Dr. Alvarez for his alleged complicity in the torture and murder of Agent Camarena.12 On April 2, 1990, Dr. Alvarez was kidnapped at gunpoint in his 28 AM. J. INTL L. 231, 238 (1934). 5. Juan Ramon Matta-Ballesteros, a citizen and resident of Honduras, under indictment on various narcotics charges in California and Arizona, was kidnapped in front of his home in Tegucigalpa, Honduras on April 5, 1988. Among other abuses, Matta alleged he had been shocked with electric devices repeatedly during his kidnapping and interrogation. Lowenfeld, supra note 4, at 447. 6. Fawaz Yunis, a Lebanese citizen wanted for the hijacking of a Jordanian airplane, was lured onto a yacht in the Mediterranean Sea, kidnapped, and transported to the United States. Yunis suffered a broken arm during the abduction. Lowenfeld, supra note 4, at 444-46. 7. Sidney Jaffee was wanted for unlawful land sales practices, as well as for failure to appear in court, and was seized on the street in front of his home in Canada by American bounty-hunters on September 23, 1981. See Lewis, Unlawful Arrest: A Bar to the Jurisdiction of the Court, or Male Captus, Bene Detentus? Sidney Jaffe: A Case in Point, 28 CRIM. L.Q. 341, 353-56 (1985). 8. United States v. Caro-Quintero, 745 F.Supp 599, 602 (C.D. Cal. 1990). 9. Id. at 601-02. 10. Id. at 603 n.6. 11. Lowenfeld, Kidnapping by Government Order: A Follow-Up, 84 AM. J. INT'L L. 712 (1990). 12. Chicago (...truncated)