United States v. Alvarez-Machain – Oral Argument – April 01, 1992

Media for United States v. Alvarez-Machain

Audio Transcription for Opinion Announcement – June 15, 1992 in United States v. Alvarez-Machain

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William H. Rehnquist:

We’ll hear argument now in No. 91-712, United States v. Humberto Alvarez-Machain.

General Starr.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

For over 100 years this Court has steadfastly adhered to what has become known as the Ker-Frisbie doctrine.

Under that doctrine, the jurisdiction of courts is not impaired by the fact that an individual was unlawfully brought before the court to stand trial.

That doctrine has served as the backdrop for the executive branch’s negotiation of numerous extradition treaties, including our treaty with Mexico.

This case, involving the forcible abduction of an individual from Mexico to stand trial in this country in connection with the torture and death of special agent Enrique Camarena of the Drug Enforcement Administration brings this doctrine once again before the Court.

In this case, the lower courts concluded that the Ker-Frisbie doctrine does not apply where there is an extradition treaty in effect, the extradition treaty was arguably violated by the abduction, and where the foreign government protests the abduction.

Harry A. Blackmun:

General Starr, as a preliminary matter, has the State Department Legal Advisors’ Office joined your brief?

Kenneth W. Starr:

The legal advisor is not on the brief, but the brief expresses the views of the United States, which includes the Department of State, and Justice Blackmun, there should be no significance to the fact that they are not shown on the brief.

Their legal advisor, Mr. Williamson has in fact opined that in his view it is entirely appropriate and proper for courts to exercise jurisdiction under circumstances such as these.

The Government speaks with one voice with respect to this case.

Harry A. Blackmun:

Nothing formal to that effect, however?

Kenneth W. Starr:

He did provide–

Harry A. Blackmun:

Just opined?

Kenneth W. Starr:

–A letter or an opinion, that is correct, but that is a customary way, Justice Blackmun, in which the legal advisor expresses his views.

In our view the–

May I–

Kenneth W. Starr:

–Yes.

John Paul Stevens:

–Before you get into your argument, why is this case a little different than some of the other Ker-Frisbie cases, has the doctrine ever been applied to a case involving the crime committed in another country by a national of that country?

Kenneth W. Starr:

By a national of that country, I believe the answer to that question is no.

John Paul Stevens:

So this is a unique… this is a case of first impression?

Kenneth W. Starr:

The facts are different, yes, but I think the doctrine itself, Justice Stevens, speaks quite broadly to the courts, that it is the role of the courts to try cases, and not to involve themselves with how the individual came into the court.

John Paul Stevens:

But in the Rauscher case, of course, that was critical how the individual–

Kenneth W. Starr:

Yes, because under that… that is exactly right, and I think that gets to the core of this case.

The distinction between Ker on the one hand and Rauscher on the other.

Justice Miller’s opinion in the Rauscher case examined very carefully the background of the treaty, the Webster-Ashburton treaty–

John Paul Stevens:

–And they also emphasized the fact that he was a fugitive and an American citizen, whereas the facts here are much different.

Kenneth W. Starr:

–The facts here are different, but the point remains, Justice Stevens, that the doctrine itself has been the broad doctrine that one simply does not inquire into how… the court does not inquire into how the individual came there unless, and this is Rauscher’s point, there is a violation of a treaty.

A treaty is law.

Kenneth W. Starr:

It must be respected as law, but here it is uncontested that there is no express provision of the treaty that speaks to this–

John Paul Stevens:

But you do concede that if there were a violation of the treaty, that the Court would not have jurisdiction?

Kenneth W. Starr:

–Depending on the precise terms of the treaty, I don’t want to speak so broadly as to say any violation might give rise to a divesting of jurisdiction.

But certainly if we had a situation where, as in the Rauscher case, there is a clear treaty provision, the doctrine of specialty, well-understood, discussed at great length indeed.

That doctrine finds its way into the text of our treaty with Mexico.

It is quite well-settled that if a state is going to perform an official act and render a fugitive over, then that state has an interest in that individual only be charged with a crime that has been laid at his feet.

But note that in Rauscher, the only relief for Rauscher in contrast to the situation here, was that he had to be tried for murder and not for cruel and unusual punishment.

There was no requirement that Rauscher be returned to the United Kingdom where he had found asylum.

John Paul Stevens:

He would have to return before he could be tried for cruel and unusual punishment.

Kenneth W. Starr:

He might have to be–

John Paul Stevens:

That’s what the case holds–

Kenneth W. Starr:

–Before he is tried for a crime other than that for which the nation rendered him over.

I think this is a very important aspect of this case: to what extent does the extradition treaty operate exclusively with respect to our relationships with Mexico, and I think it is vitally important for me to make one point: that the extradition treaty is a tool, it is a valuable tool, but it is only a tool.

We deal with the Government of Mexico quite informally.

There are numerous instances of informal renditions of individuals outside the treaty terms.

There have been instances where there have been informal renditions of individuals where it would appear that to extradite them might run afoul of the terms of the treaty, and Mexico therefore chooses, for political reasons, to–

John Paul Stevens:

–It is perfectly clear, there is no precedent for our kidnapping a foreign national when that national’s country is asserting jurisdiction over him.

Kenneth W. Starr:

–There is no case that involves those specific facts, Justice Stevens.

I think that I concede to you.

What I do not concede is that the insight of Ker in any way is compromised by the point that the individual happens to be a foreign national, and when the Court thinks as to the circumstances that might well arise, terrorism, narcotrafficking, there may very well be circumstances when it is the sober judgment of the United States Government that extraordinary action is required.

And that is a matter that is entrusted in this Court, speaking initially through Chief Justice Marshall in the Head Money cases and in the Ship Richmond case said these are issues ultimately for the political branches.

If the–

Antonin Scalia:

General Starr, is it any less a violation of international law to kidnap a foreign national from a foreign country than an American national from a foreign country?

Kenneth W. Starr:

–I do not–

Antonin Scalia:

Can I assume that we are not supposed to go in and just snatch people from foreign countries without their consent?

Kenneth W. Starr:

–I think it certainly could be maintained that as Mexico can reasonably maintain, that there was a violation of Mexico’s sovereignty, and in your hypothetical, certainly a violation of sovereignty.

What I don’t want to readily concede, Justice Scalia, is that a violation of sovereignty is necessarily a violation of international law, of customary international law.

Antonin Scalia:

That isn’t the point I am making.

Whether it is a violation–

Kenneth W. Starr:

Correct.

Antonin Scalia:

–of Mexico’s sovereignty depends upon whether the person snatched was a Mexican citizen or not.

Kenneth W. Starr:

The answer is no.

It is the territorial integrity that would have been compromised.

Antonin Scalia:

And indeed, an American national might have more cause to complain about the violation of international law by his country than a Mexican national might.

Kenneth W. Starr:

It is certainly clear from the standpoint of the Nation that its sovereignty has been violated, and that is a very serious matter.

Chief Justice Marshall in Ship Richmond said that is a matter for the political branches.

Indeed, in the Head Money cases he said this is a matter that may entail the most delicate kind of contretemps between nations, including the possibility of hostilities, but of this, the courts are to have no cognizance.

Harry A. Blackmun:

General Starr, historically, has the situation ever been reversed, where Mexico has come and raided us and taken someone?

I am old enough to remember the days of Pancho Villa.

[Laughter]

Kenneth W. Starr:

There are in fact episodes, in fact, at footnote 23 of our opening brief we do recount a situation which is quite similar to that.

Harry A. Blackmun:

What would this country do if it happened?

Kenneth W. Starr:

But in terms of what this country would do, in fact, what we saw in the Sidney Chaffee case I think is quite illustrative.

Individuals go into Canada and kidnap a Canadian businessman and bring him to the United States to stand trial.

It would not be our position, Justice Blackmun, that notwithstanding the affront to Canada’s sovereignty or to Mexico’s sovereignty or to the United States’ sovereignty, that the courts of those countries were divested of jurisdiction.

That is the narrow point that we are making, that these are matters that are entrusted to the political branches through the diplomatic process, to examine and to explore and to resolve.

Anthony M. Kennedy:

Do we decide this case, General Starr, on the assumption that there has been a violation of international law?

Kenneth W. Starr:

I don’t think that you need to assume that there has been a violation of international law, but we are prepared, Justice Kennedy, to say that, assuming arguendo that there was, nonetheless, the Government’s position should prevail.

Anthony M. Kennedy:

Do you concede that there is a violation of international law?

Kenneth W. Starr:

I do not concede that there is a violation of international law but for purposes of argument, I am prepared to say that if there were a violation of international law, still Ker-Frisbie applies, just as it applies when there is a violation of the Constitution of the United States.

John Paul Stevens:

But there is no violation of international law in either Ker or Frisbie.

Kenneth W. Starr:

Oh, there clearly was a violation of international law–

John Paul Stevens:

Maybe civilian law possibly, but the man did not have an asylum status in that case.

Kenneth W. Starr:

–Well, Justice Stevens, I have to respectfully disagree that there was at least a violation of Peruvian sovereignty by virtue of… as the Court has described this case–

John Paul Stevens:

But he did not have asylum status, he was a mere fugitive.

Kenneth W. Starr:

–But he was nonetheless, and this Court… when I read the Court’s opinion in Ker it does not place any emphasis at all or any significance on that individual’s status as an American citizen and as a fugitive–

John Paul Stevens:

–makes that point critical–

Kenneth W. Starr:

–But Rauscher, again, talks about the point, and we have no quarrel with that as embodied, as reflected in the fact that the extradition treaty with Mexico incorporates the specialty principle, but that is a narrow principle–

John Paul Stevens:

–it has the distinction between Mexican nationals and those who are not Mexican nationals doesn’t it–

Kenneth W. Starr:

–Yes, it does, and in fact, I think that is a very important point.

Kenneth W. Starr:

One of the reasons, Justice Stevens, that it is somewhat impracticable to proceed under the extradition treaty is that Mexico has no obligation to extradite its nationals.

The United States will and does.

The Government of Mexico has never extradited one of its nationals under the terms of an extradition treaty.

It has done so in–

Sandra Day O’Connor:

–But, General Starr, the treaty in Article 9 does say that if Mexico doesn’t extradite one of its own nationals, that nevertheless, the United States can require Mexico to prosecute the person there.

Kenneth W. Starr:

–There is no question we have a right under Article 9.2 to have it submitted–

Sandra Day O’Connor:

My concern, frankly, is that it is not so clear to me that the extradition treaty doesn’t contemplate that that is the exclusive process to be followed.

When you read Article 2, that says for the designated offenses, including murder, extradition shall take place subject to the treaty, and if you look at Article 9 which says the country doesn’t have to yield up its own nationals, but will have to prosecute, I think one could come away thinking the treaty covers this case.

Kenneth W. Starr:

–I think with all respect that would be a misimpression.

First of all, and foremost is the legal backdrop of our negotiation, Justice O’Connor, of this treaty.

This treaty, along with our 102 other treaties, was negotiated against the backdrop of Ker-Frisbie, which has been very generally understood throughout the world, but certainly by the courts of this Nation as meaning that courts are not divested of jurisdiction even if there is an unlawful abduction.

But now let me move to the treaty.

I think, with all respect, that represents an overreading of the treaty.

The treaty in various terms speaks in terms of requesting, the party requesting and invoking the treaty.

If I leave nothing else with the Court other that Ker-Frisbie, it is this: the extradition treaty is employed only in some cases.

We continue to have relations with Mexico informally outside the umbrella of the treaty, including when the terms of the treaty would be violated.

I’m sorry.

Sandra Day O’Connor:

But isn’t that always possible, that parties to a treaty, like parties to a contract, can agree to some other specific arrangement?

Kenneth W. Starr:

Yes, and it’s one of the reasons why individuals should not be seen as having enforceable rights under this particular treaty.

Which in contrast to the practice that is embodied in the treaty at Rauscher, this is a treaty that should not be seen as giving rise to privately enforceable rights, even–

Sandra Day O’Connor:

Don’t… don’t extradition treaties, if they apply routinely, give rise to individual enforceable rights that they–

Kenneth W. Starr:

–Well certainly, it can be argued that if there is a violation of the treaty… but my point is a very important and narrow one here, which is this treaty was crafted with this backdrop in mind of Ker-Frisbie.

And if, if what we wanted to accomplish was what has been suggested by the other side, then there was a very readily available tool; the Harvard Project, in 1935, crafted a proposed insertion in extradition treaties, article 16, this is referred to in the briefs.

That’s quite clear that the Court shall not proceed under those circumstances.

There is nothing here at all in the treaty itself about the courts being divested of jurisdiction.

And it would be quite extraordinary for the Court to conclude that it’s all right to proceed with the prosecution if there’s been a violation of the Constitution of the United States, but a violation, at most accepting the other side’s submission, of an implied obligation.

David H. Souter:

–General Starr, do any–

–Go ahead.

Thank you.

Do any of our other extradition treaties include what you refer to as article 16?

Kenneth W. Starr:

They do not, and they do not for a reason.

We would not readily accede to such a limitation on the ability of the executive branch under various circumstances to proceed by other means; and certainly not to give an argument or a right to an individual to say, I do not have to face these serious charges against me by virtue of my reading of an implied obligation in the treaty, or in that instance, an express obligation.

David H. Souter:

Just to–

Kenneth W. Starr:

And unless we were willing to engage… I’m sorry.

David H. Souter:

–No, you finish your sentence.

Kenneth W. Starr:

Unless we were willing to enter into a Webster-Ashburton type treaty and then bind ourselves with respect to the doctrine of specialty.

We’ve done that here, but that’s all that we have done.

David H. Souter:

So it would be… it would be correct to say that in no presently operative extradition treaty of the United States there is any express bar to the United States’ resort to some means other than extradition to get the person back.

Kenneth W. Starr:

That is true.

David H. Souter:

Okay.

Is it… may I ask you another treaty question?

Your brief on page 32 refers both the U.N. charter and to the OAS charter, which the court of appeals referred to.

Did… did this abduction violate the terms of either of those charters?

Kenneth W. Starr:

No, we would not concede that they do.

We certainly do understand the point of the Government of Mexico that its sovereignty was violated, but by virtue… the record is not terribly extensive in this case, but footnote 2 at least adumbrates briefly the background.

That is to say, no DEA agents were in the territory of the Government of Mexico, and this activity followed on the heels of informal discussions with representatives of the Government of Mexico.

We did not, in fact, physically intrude directly into the territorial integrity of the Government of Mexico, but we do not suggest that these were not our agents.

But in terms of whether there was a violation or not of the U.N. charter and the like, I think the law is clear, Justice Souter, that that does not give rise to privately enforceable rights.

Again, what underlies, I think, the Ker-Frisbie doctrine, is the principle that it’s not for courts to involve themselves in these sorts of very delicate determinations as to whether there were violations of international law and the like; that these are matters that are to be adjusted between the Governments of the United States and Mexico and any other affected country.

And that’s the assurance that the Court has.

We are held to account to the Congress of the United States, which knows how to legislate.

I should add, Justice Stevens, with respect to the Webster-Ashburton treaty, that the Court was not of one voice in that case.

As you will recall, there was, of course, the dissent by Chief Justice White.

But more than that, one of the–

John Paul Stevens:

Justice White made the argument that there’s nothing express in the treaty.

Kenneth W. Starr:

–But one–

John Paul Stevens:

But the majority said that it wasn’t necessary to be express.

Kenneth W. Starr:

–And what the majority said, Justice Stevens, is the Congress of the United States in those two statutes had clearly made its view known.

And the point I was making to Justice… may I conclude with Justice Souter?

The point I was making with Justice Souter is Congress knows how to step in and legislate.

Kenneth W. Starr:

It has done through… done so through the Mansfield amendment.

It did so in the legal backdrop of Webster-Ashburton, and the Court did place emphasis on that and we think that was an important aspect of the case.

That is not so here.

There are no confirming statutes here.

This is a very general treaty.

There’s no… and our colleagues on the other side admit there’s no express treaty provision, and it is extraordinary–

John Paul Stevens:

Upon the statute point in the case you refer to, one Justice concurred separately on that ground alone.

Kenneth W. Starr:

–That’s correct.

John Paul Stevens:

The Court as a whole did not regard that as an essenatial part of its decision, it was the second ground of its decision.

Kenneth W. Starr:

Justice Miller’s opinion is quite scholarly, lengthy, much of it can be referred to as dicta, but I do think that he was placing emphasis… my reading may be different with all respect, was placing emphasis on the fact that its understanding of this treaty, with the doctrine of specialty, with which we have no quarrel–

John Paul Stevens:

–created it in that case.

Kenneth W. Starr:

–But they created it against the backdrop of the practice of nations.

And when you look–

John Paul Stevens:

The State law decisions were their principal reliance.

State court decisions in the United States.

Kenneth W. Starr:

And when… when you look at what Ker did, Justice Stevens, in the last page of the opinion it spoke about authorities of the highest respectability, including State law authorities, State v. Brewster out of Vermont in 1835 involving the abduction of an individual from Canada.

And the Vermont supreme court said, and this Court unanimously said we have no quarrel with that, these are authorities of the highest respectability, that it is not for us to question how that individual came from Canada into Vermont, if he was kidnapped.

And Ker then went on, what happens if there is that sort of violation?

An individual may find himself extradited to Canada to stand trial for kidnapping.

There are other remedies that are available.

There are obviously diplomatic and political remedies that are available, Ker noted that.

But that the cost to society, I think that was an insight of Justice Harlan in United States v. Blue, the costs to society are simply too great to say because you came, in our view, unlawfully into our jurisdiction, we’re going to divest ourselves of jurisdiction.

That is a very heavy cost for society to bear, and that is one of the reasons that I think Justice Black spoke so forcefully to this in Frisbie itself, where… the assertion there, interstate, not going across international lines to be sure, but there was an allegation of a severe beating and a violation of the Federal Kidnapping Act, and Justice Black said no.

There may be a violation of law and there may be remedies for those violations of law, but if you have been charged with a crime, you have to stand trial for that crime.

John Paul Stevens:

General Starr, let me just go back to one point, and then I’ll… I’m taking more of your time than I should, I realize.

Do you think you can compare two cases?

Suppose if a Mexican fugitive fled into Texas and was kidnapped by Mexican authorities and brought back into Mexico on the one hand.

In the other case they came in and apprehended an American citizen in Texas and took him to Mexico.

Do you think they would be equally offensive to our sovereignty, or do you think our sovereignty would be more offended by the kidnapping of the American citizen as contrasted with the Mexican fugitive?

Kenneth W. Starr:

I think our… our territorial sovereignty would be equally violated in each instance.

Kenneth W. Starr:

I think our sense of violation is obviously enhanced if one’s own citizen is affected.

But the key point, the nationality principle… but it still would not be our position, Justice Stevens, that the courts of Mexico were divested of jurisdiction.

That’s exactly what we told, with all respect, the Government of Mexico in the episode that we recount in footnote 23, the Martinez episode.

They come across… there is, in fact, an abduction from Mexico into the United States.

We say that was improper.

Martinez has to go back to stand trial in Mexico for kidnapping.

We responded to the extradition request, but we told the Government of Mexico, with all respect, I’m sorry, the courts are not divested of jurisdiction, that was the holding of the Ker case.

And we think the Ker case spoke in very broad terms, including looking at English authorities, which are very much to the same effect.

The authorities throughout, and especially in this country, have been that there is no reason for a court not to try a case just because of an unlawful apprehension.

Let other remedies suffice, but the remedy of divesting the Court of jurisdiction is too heavy a cost and it also, quite frankly in my judgment, tranches on separation of powers concerns, especially when the order is to repatriate the individual against the will of the executive branch.

John Paul Stevens:

Can I suggest one thing on the costs.

In the other cases, if the American tribunal can’t try him, he’s not going to be tried at all.

Whereas here it’s not the same cost, because he’s subject to trial in the state from which he was abducted.

Kenneth W. Starr:

Well he is subject to… I think if a careful parsing of 92, by the way is given, all that 92 says is that it shall be submitted to the proper authorities.

There’s no requirement of prosecution, there’s the requirement of submitting the matter to prosecutorial authority.

John Paul Stevens:

Well, at least he’s subject to prosecution there, whereas in the Peru case–

Kenneth W. Starr:

That is–

John Paul Stevens:

–The man was not subject to prosecution in Peru.

Kenneth W. Starr:

–But my final point with respect to that is that does not vindicate the sovereign interests of the United States.

It is critical to note that Enrique Camarena was tortured and murdered when he was serving in his official capacity trying to stop the flow of drugs from Mexico into the United States.

And the district court found that it had extra… that it had subject matter jurisdiction.

That is crystal clear, and that distinguishes this from a crime that might somehow indirectly affect the interests of the United States that carried… that is carried on overseas.

I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well, General Starr.

Mr. Hoffman, we’ll hear from you.

Paul L. Hoffman:

Mr. Chief Justice, and may it please the Court:

This case does depend on a choice between the line of authority that begins with Ker v. Illinois and the line of authority that begins with United States v. Rauscher, and in the line of authority starting with United States v. Rauscher, this Court has made it clear on several occasions, an unbroken chain of occasions, in Johnson v. Brown, in the Ford case, in United States v. Cook, that the jurisdiction of the United States, the authority of the United States can be limited by treaty obligations.

That is the basic principle of Rauscher and Rauscher really stands as an answer to all of the arguments that the Government has made in this case.

In the Rauscher case, there was no explicit rule of specialty, in the Webster-Ashburton treaty of 1842, nor was there any explicit mention that a violation of the rule of specialty would limit the jurisdiction of the Court.

In fact, in that case there had been a conviction of somebody.

Paul L. Hoffman:

Mr. Rauscher had been convicted.

He was physically before the Court, and yet this Court decided that our international obligations under the Webster-Ashburton treaty were more important and the Court found that in the language of the treaty, in the manifest purpose and object of the treaty, the Court had to find that there was a rule of specialty, and the Court did not defer to the executive branch version of that rule of specialty.

In fact, there had been a diplomatic controversy raging between the United States and Great Britain for more than a decade on this very point, and the British Government had made its position very clear that a rule of specialty was required because of the background rule of customary law that the parties had to have intended by creating the language that they created in the treaty, which is the same argument that we make here.

The Government of Mexico has made it very clear that they understood, as Canada understood, that extradition treaties, when they place specific limits on how people can be rendered, mean that.

The deal was article 9, with respect to obtaining the presence of a Mexican national before this Court.

That was the deal that was made, and in the context of that treaty and its purpose and the entire structure of it, it must mean that the United States is not free to kidnap Mexican nationals to circumvent that.

Byron R. White:

How about Americans in Mexico who are charged with having committed a crime, in America?

Paul L. Hoffman:

Justice White, it would be our view based on the language of the treaty, its purpose and the fact that it is the exclusive means, that Americans should not be kidnapped consistent with this treaty either, because the limitations, for example, on the political offense doctrine and the other limitations in the treaty also, we believe, should lead a court to conclude that kidnapping to circumvent those limitations would also be a violation of the treaty.

But with respect to article 9, it is different.

There are very few cases of kidnapping, there are very few cases… there are no cases of kidnapping of a national in the Ker-Frisbie line that the Government argues is a backdrop.

Article 9 makes it very clear what the deal was with respect to Mexican nationals, as Judge Browning in the Verdugo case in the Ninth Circuit found that one could base a decision, a court could base a decision on article 9 that there was a specific arrangement, but our belief is that–

Antonin Scalia:

I don’t understand what you mean by a specific arrangment… what article 9 said if you don’t turn it over you may consider prosecution.

Paul L. Hoffman:

–Your Honor… I’m sorry… Justice Scalia, what article 9 does, as it says, if you want to obtain personal jurisdiction over a Mexican national you have two alternatives.

I mean, the alternatives are you ask and either extradition will be granted or the case will be submitted for prosecution.

It doesn’t mean that you can kidnap to obtain jurisdiction.

Antonin Scalia:

It does not go on to say and nothing else.

It is a treaty that gives to the United States benefits that the United States did not have before.

You can get extradition, and if you don’t get that you might also get prosecution, and it doesn’t go on to say and that’s it.

Paul L. Hoffman:

But it can’t be understood as also suggesting that a kidnapping in violation of those terms would be proper.

The history–

Antonin Scalia:

–nothing about the point–

Paul L. Hoffman:

–But those words can’t be read in isolation.

I think the whole text of the treaty indicates that the parties agreed on specific limitations on how you would get jurisdiction, and it’s in the context and the Vienna Convention and the rules in Rauscher indicate that one has to read those treaty terms in the context.

Antonin Scalia:

–The rule in Rauscher, I mean the rule you suggest may be a reasonable one, but it wasn’t the rule that was pronounced in Rauscher.

Rauscher said and in the words of Mr. Justice Miller, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty.

That is a quite different principle.

If you are using the treaty to get him here, you have to abide by the terms of the treaty.

Here, the treaty is not used to get him here.

I don’t, I mean, there may be good reasons, but Rauscher isn’t the reason.

Paul L. Hoffman:

Justice Scalia, I think that the principle in Rauscher is that the court may find an inherent provision that’s not specifically stated.

Paul L. Hoffman:

Our case is not a case based on the rule of specialty, but it’s based on an even more fundamental rule, and the Court’s analysis in Rauscher certainly would permit this Court to look to the background rules of customary law; as they did in Rauscher, it would look to the history, where Secretaries of State of the 19th century, from the beginning of our extradition treaties on said that abductions violated the treaty, they were not consistent.

Byron R. White:

You don’t suggest that Mexico could not have voluntarily turned over… turned over one of their nationals for a trial in the United States?

Paul L. Hoffman:

I would suggest that the Mexican Government would certainly not turn over a Mexican national because of the restrictions–

Byron R. White:

Would it violate the treaty?

Paul L. Hoffman:

–No.

Justice White.

Byron R. White:

Has it ever happened?

Paul L. Hoffman:

I do not know that Mexico has handed over a national in the course of our relations.

Anthony M. Kennedy:

But you don’t think it would violate the treaty?

Paul L. Hoffman:

No.

Our position–

Anthony M. Kennedy:

Do you?

Paul L. Hoffman:

–No.

Byron R. White:

So it wouldn’t be that the treaty would not be the only way of securing the presence of a Mexican national in the United States?

Paul L. Hoffman:

There has been a long history of informal relations between Mexico and the United States, and those are perfectly consistent with the treaty and with our version of the treaty, our position on the treaty.

Byron R. White:

You don’t think that if Mexico turned over one of its citizens informally, not under the treaty, would the defendant have a–

Paul L. Hoffman:

If Mexico–

Byron R. White:

–If they turned him over and he was being… he was charged with a crime here, would he have a valid motion for dismissal of the case?

Paul L. Hoffman:

–I think Mexico has the ability to defease that right from him, I mean, I think that and that is perfectly consistent with Rauscher and the specialty cases.

William H. Rehnquist:

So what you are saying maybe it’s Mexico’s right and not the individual’s right?

Paul L. Hoffman:

No, well, it’s both.

It’s both and I think in the case of a–

William H. Rehnquist:

If an individual’s right can be defeated by Mexico saying we don’t care–

Paul L. Hoffman:

–And that was true in Rauscher.

In Rauscher Great Britain could have decided to allow Rauscher to be tried for a lesser offense than the murder that they extradited him for.

That is true in every specialty case that the foreign sovereign has the absolute right to take away the principle of specialty that’s asserted by the individual.

William H. Rehnquist:

–Doesn’t that suggest then that it’s the foreign sovereign’s right and that the individual may be a third-party beneficiary so long as that… but it isn’t primarily the individual’s right.

Paul L. Hoffman:

But there is a long history in this country of self-execution, of the notion that extradition treaties are self-executing, and extradition treaties serve different purposes.

To be sure they serve the purposes of mutual cooperation and law enforcement, but they also serve the purpose of protecting sovereign interest and they serve the purpose of protecting individual interest and that has been understood in the cases from the very beginning which have given individuals the rights to claim interests which are really sovereign rights too.

In this particular case, the sovereign rights and the individual rights are almost identical, and they coincide in the sense that for a Mexican national, Mexico owes a duty to the respondent in this case to protect him and offer the benefits of Mexican law, and so when they are asserting their sovereign interests to prevent the United States from circumventing this treaty and bringing him to the United States they are also protecting his interests.

Paul L. Hoffman:

The interests are really in the same alignment in this case and under Rauscher and Johnson and cases before and after that, individuals have been given the right to claim benefits under treaties.

William H. Rehnquist:

But you agree that if Mexico had not protested this and said we don’t care about this, then the treaty would not bar the trial of this person?

Paul L. Hoffman:

If Mexico had given its consent, I think that would be very similar to what Justice O’Connor talked about with respect to contracts.

If Mexico and the United States enter into a different agreement and if they do it in the context of a consensual rendition, then it is true that that respondent would not have the ability to assert this right in the court.

Sandra Day O’Connor:

What is your case authority for that proposition?

Paul L. Hoffman:

With respect to the informal renditions?

The line of… first of all, Ker v. Illinois is certainly a case in which the fact of an absence of protest by Peru was noted, that Peru did not assert its sovereign interest in preventing an abduction from its territory to the extent it had it, that the court was very clear to say that Peru had not asserted that right, and in many of the cases that have followed Ker, Ker is the only international abduction case in this Court.

But in the cases since then, courts have gone out of their way to point out that the foreign sovereign had not protested, and I think that that is consistent with the theory that the foreign sovereign is in a position to consent to a rendition outside of the terms of the treaty.

Byron R. White:

Well, suppose that it happened in this case and the United States, well, do you think the rule of specialty would apply then?

Paul L. Hoffman:

The rule of specialty would apply in an informal case?

Well, there is certainly some authority.

This Court has not decided that question, there is certainly authority in lower courts that an informal rendition would include a rule of specialty.

That is not an issue that certainly applies in this case because there was a clear, unequivocal protest, there is no doubt about Mexico’s position.

There is also no doubt about the violation of international law, and in reading this treaty we would submit that there can be no doubt that the United States can’t come into Mexico to circumvent the prohibitions in article 9 of the treaty.

One of the ways to look at it, I suppose, is that the U.S. position would be that if they had asked for extradition formally and then they were denied and Mexico said instead what they say before this Court, we will not extradite Dr. Alvarez-Machain, what we will do is try him as we have tried many others associated with the case, allegedly involved in the Camarena case, and the United States Government says, no that doesn’t satisfy us.

We want something more than that, and so we will kidnap him.

Presumably if the request had been made then that would violate the treaty.

Sandra Day O’Connor:

Mr. Hoffman, assuming that the kidnapping was a violation of international law, do you assert that gives a U.S. court any power to remedy the situation?

Paul L. Hoffman:

Justice O’Connor, I believe that that–

Sandra Day O’Connor:

In a subsequent prosecution of the individual?

Paul L. Hoffman:

–That raises different questions, clearly, than the ones upon which this case was decided.

I think that there are strong arguments for the authority of the courts to enforce a customary prohibition in international law in this case.

The Mollocoptus principle does involve a violation, this kind of violation and a protest meaning that there has to be repatriation, but I think that those would raise very different questions and the authority of the United States to overcome that customary principle might be greater than in the case of a treaty where the courts have a constitutional role that’s been recognized.

Sandra Day O’Connor:

Well, if we were to conclude the treaty doesn’t cover this, do you fall back on some violation of international law?

Paul L. Hoffman:

Justice O’Connor, there were alternative grounds for affirmance that were presented to the Ninth Circuit and the courts below.

Those have not been ruled upon either by the district court or the Ninth Circuit and presumably those would be litigated if this Court finds that there is no provision in the treaty.

One of the things that, to return to Rauscher for a moment, the point that the Government has made about the statutes really don’t amount… this Court has already rejected that, I think in Rauscher and Johnson v. Brown, where the Court has said that the statutes were not an essential ground for the decision, and clearly there were no statutes in Ford and Cook of the kind that the Government claims.

Nor were there any explicit treaty provisions that dealt with the consequences of seizure in violation of the treaty limitations.

With respect to the Ker-Frisbie, the Ker doctrine, the Government has claimed that Ker stands for a much broader proposition than the actual decision in Ker would suggest.

In Ker, there was no… under our presentation of this case, Ker would be decided the same way.

Paul L. Hoffman:

In Ker there was a private abduction and so it was not a state-sponsored case of kidnapping, that’s… and the Chaffee case that was mentioned by the Government is another case of a private abduction and I think that under customary law and under what Mexico and Canada have understood this treaty to mean, it is state-sponsored kidnapping that would be prohibited, not necessarily a private abduction.

So Ker is limited to that situation.

In addition, the Court went out of its way to say that there had been no protest and therefore Peru’s sovereign interests were not at stake, and that that is a key distinction between that case and this case.

In the cases since Ker, the courts have, the cases have all fallen into situations where there has been consent or acquiescence in the informal renditions or where there had been private abductions, and that’s true… our recitation of the foreign cases which says that they appear to be in alignment too, that really the Ker doctrine that the Government claims as a backdrop principle has not been known widely in the world, has not been known in this country, and certainly would not have been known to Mexico as meaning that the United States could engage in state-sponsored kidnapping and that that would not affect the jurisdiction of the court to try somebody.

William H. Rehnquist:

If there were a case concededly controlling from this Court, governing a particular… would it make any difference whether Mexico knew about the case or not?

Paul L. Hoffman:

No, Chief Justice Rehnquist, if this Court were to find that Ker stands for a broad principle that notwithstanding treaty obligations a court should try the person who comes before it no matter how that person comes before it, then obviously the treaty would not, well, it would apply.

William H. Rehnquist:

What you’re saying then is that the holding of Ker, the teaching, whatever you want to call it, has not been understood in the international community as broadly as the Government is saying it has?

Paul L. Hoffman:

That’s correct, and I don’t think it’s been understood by lower court cases.

Now there is some broad language about what Ker means, but the cases, I think, have been very careful to distinguish between the different situations that point out the absence of protest and I think that the Rauscher line stands for an equally important line of authority and policy interest.

What this Court said in Johnson v. Brown was that treaty obligations, the enforcement in good faith of treaty obligations is of vital importance to the Nation, and it was understood from the beginning.

Anthony M. Kennedy:

Well, counsel, I think your point that this was not against a background where Mexico knew of our policy is much diminished in force by the Government’s citation of a letter in 1906 from the acting Secretary of State pointing out to the Mexican Government that Ker is on the books and that the Government of the United States follows that principle with reference to persons taken from foreign sovereignty.

Paul L. Hoffman:

But the Martinez case is a different case, and it is fully consistent with the position that we are asserting before this Court.

In Martinez the person was abducted… excuse me, that was abducted by private kidnappers.

Mr. Felix was not a U.S. Government agent sent across the border to capture somebody.

A private abductor brought someone across the border and the United States took the position that Ker-Frisbie applied in that situation and there was no violation at stake, and the United States extradited the kidnappers, and so the Martinez incident is–

Anthony M. Kennedy:

But the point is that the Mexican Government has been advised of this doctrine and of its applicability.

Paul L. Hoffman:

–But Justice Kennedy, the Mexican Government was never advised and the United States has never asserted… and it’s my belief that the United States has never asserted before this case that the United States reserves the rights with its extradition partners to itself engage in kidnapping from other countries to avoid the limitations and extradition treaties, and that’s our main point, that the extradition treaty… and this is the point that Mexico–

Antonin Scalia:

What… you’re referring to the limitations in the expedition treaty, and you referred earlier to the limitations in Article 9.

There are no limitations in Article 9.

You can read it from beginning to end.

There is no limitation.

Paul L. Hoffman:

But Justice Scalia, the limitation is the fact that Article 9 talks about how the United States may obtain personal jurisdiction over a Mexican national.

Antonin Scalia:

You create the limitation by simply positing that it can’t be done any other way.

It does not say in Article 9 or anywhere else in the treaty–

Paul L. Hoffman:

But Article 9–

Antonin Scalia:

–That it can’t be done in any other way.

Paul L. Hoffman:

–Article 9 comes with a long and historical heritage in the sense that before Article 9 the Mexican Government said it would not extradite its nationals.

In every one of the extradition treaties before, Mexico took the position it would not under any circumstances extradite nationals.

The Secretary of State, as this Court noted in the Valentine case said that it was our understanding that we couldn’t even ask for Mexican nationals.

It would be inappropriate under the treaty to do that.

Paul L. Hoffman:

So Article 9 was a step in the direction of the kinds of interests that… the law enforcement interests that the United States was concerned about, and so what Mexico gave up in Article 9, it said number 1, we will consider extradition for the first time, and number 2, if we decide not to extradite, as it is our right not to do, we will submit the case for prosecution.

Antonin Scalia:

But there’s no prohibition of any other manner of getting the individual back to the United States except to the extent that some such prohibition exists in international law, quite apart from the treaty.

Paul L. Hoffman:

Well, but there’s no prohibition in… no explicit prohibition on the fact that you can’t execute summarily the person that’s extradited, or you can’t torture them.

I mean, what we’re saying is that the understanding that States have when they enter into extradition treaties, and it’s not just the respondent saying it, but Canada has said it to this Court, Mexico has said it to this Court, that the U.S. position in this case is a shocking position and a new position, and it is understood, just as it was understood that a rule of specialty should be found to be part of the Webster-Ashburton Treaty, that this could not be allowed, and just as words were added, a provision was added–

Antonin Scalia:

Would it be any less shocking to them if they had no extradition treaty with the United States and the same thing occurred?

Paul L. Hoffman:

–No, it would be shocking in both–

Antonin Scalia:

Of course, it would be no less shocking at all.

It seems to me you’re not relying on the treaty.

You’re relying upon a general rule of international law.

Paul L. Hoffman:

–There was a… I think that is not the case in the sense that just because the United States engages in egregious conduct that violates basic principles of the international legal order and it violates them in many different ways doesn’t mean that it doesn’t also violate the explicit provisions… the clear intent of this treaty, and I think that–

Antonin Scalia:

The clear intent.

Certainly not the clear language.

Paul L. Hoffman:

–That’s correct, Justice Scalia.

There’s no… Mexico has explained very clearly in its brief why it believed it was not necessary to ask the United States for such an explicit provision, because it never believed that the United States would engage in that conduct, and if the United States had asked for that, had said we consider this to be optional, if we want to ask under the treaty we’ll ask under the treaty, but if we don’t ask under the treaty, we’ll kidnap, they said they would have picked up their briefcases and left and we wouldn’t have extradition treaties.

John Paul Stevens:

Mr. Hoffman, can I ask you a question about the text of the treaty?

Article 17 does have the rule of specialty and it’s spelled out in careful detail.

Was that a customary provision in extradition treaties before the Rauscher decision?

Paul L. Hoffman:

That is what the Court refers to in Rauscher, that it had been the custom that when a person had been handed over in that manner that they could only be tried for that–

John Paul Stevens:

Was that a custom independently of any written language in treaties–

Paul L. Hoffman:

–Yes.

John Paul Stevens:

–Or was it a customary provision of treaties?

Paul L. Hoffman:

Yes, it was a customary–

John Paul Stevens:

It makes a big difference it seems to me.

Paul L. Hoffman:

–I don’t know if I can answer that.

I believe that it was a customary prohibition, but I cannot answer whether–

John Paul Stevens:

The opinion itself doesn’t refer to any such provision in the treaty, and I had assumed that they had implied that that was just a fair way to read the treaty, that if we followed the procedure–

Paul L. Hoffman:

–My understanding, and certainly the Justice Friendly decision in Fiacani would suggest, that principles of international comity would require the same result, that if someone is handed over informally as sovereign nations have the right to do that that principle would still obtain, that essentially what has happened is that the State that has handed the person over has essentially given up a sovereign right to give that person asylum, and so the authority is limited in terms of prosecution to what… to that piece of sovereignty that the Government has given up.

And I think that extradition treaties have to be read in the context of those sovereign interests that this Court has recognized from the beginning of its work.

William H. Rehnquist:

–Mr. Hoffman, certainly the Court in Frisbie read Ker very broadly.

It said this Court has never departed from the rule announced in Ker that the power of a court to try a person for a crime is not impaired by the fact that he had been brought within the Court’s jurisdiction by reason of a forcible abduction.

Paul L. Hoffman:

Well, Chief Justice Rehnquist, that’s true.

Frisbie reads that very broadly in that context, but the Frisbie context is very different.

Under the extradition clause within the United States, for example, there is no right… sovereign right that one State has to delay or deny extradition to another, and so there are no sovereign issues there, and the question is whether the due process clause may be used to remedy that kind of police conduct.

William H. Rehnquist:

But if you’re right that the fact that it was a governmental kidnapping is important, there was… it’s a governmental kidnapping in Frisbie, too.

Paul L. Hoffman:

Well, but the reason that it’s important because it’s a governmental kidnapping is that it invokes our treaty obligations.

I mean, our–

William H. Rehnquist:

Why should the treaty obligations be more important when a court is determining jurisdiction than perhaps violations of the Constitution of the United States?

Paul L. Hoffman:

–Well, I think that obviously the Constitution is more important from our standpoint as Americans than treaties, but treaties have been very important to this country’s history, and I think this Court has recognized that treaties may place a limitation on the authority of the United States Government to seize, and that those limitations must be fulfilled, and it’s not just because it’s a treaty obligation, it’s because those treaty obligations are part of a web of international relationships that are essential to this country, and have been thought to be essential to this country from the beginning of time.

William H. Rehnquist:

That really doesn’t distinguish them from a constitutional principle.

In fact, as you concede, a treaty is subordinate to the Constitution.

Paul L. Hoffman:

But the Constitution does… was found in Frisbie not to place limits of that kind.

It was found that the due process clause, which was the clause that was relied upon in Frisbie, was found to be satisfied by giving that person a fair trial.

Moreover, the only… I think in the Frisbie type case there’s a kind of inherent futility.

If you send the person back as a remedy for that violation the person will be back again, so unless you actually affirmatively grant them immunity from prosecution, they’re going to be tried before that court no matter what.

That’s not true here.

The treaty obligation limits the authority, and in fact the remedy is different in the sense–

William H. Rehnquist:

So in this case the accused murderer perhaps never will be tried.

Paul L. Hoffman:

–I don’t think that the Court can assume that, because Mexico has–

Byron R. White:

Well, I thought that was your point that you were just making.

Paul L. Hoffman:

–No, but the point is that it will be a different… what will happen is different, and in fact in this case the policies of Frisbie are satisfied to some degree because Mexico will agree to prosecute.

Mexico has stated to this Court that it will live up to its obligations under Article 92, and it’s given the Court very good reason for believing that that’s true, and so the underlying policies of Ker-Frisbie about immunity from prosecution don’t apply because Mexico will prosecute, and that’s the bargain that the United States made, and it made it willingly, that Mexico would be able in a case like this, which after all involves also a murder of a Mexican citizen.

The events occurred in Mexico… Mexico has an interest.

Antonin Scalia:

That’s no bargain.

All it says is that Mexico may prosecute.

That’s what the treaty says, not that it must.

Paul L. Hoffman:

Well, but that’s a traditional form of that kind of treaty provision–

Antonin Scalia:

You mean they say may when they mean must?

Paul L. Hoffman:

–No.

What it means is that… and the United States insists on this too, that obviously there’s prosecutorial discretion based on the kinds of evidence that are presented.

The United States hasn’t presented evidence, as far as anyone knows.

Antonin Scalia:

Are you telling me that Article 9 means that Mexico must prosecute–

Paul L. Hoffman:

No.

Antonin Scalia:

–If there is evidence to prosecute?

Paul L. Hoffman:

No.

What Article 9 says–

Antonin Scalia:

Does it mean Mexico can prosecute if it feels like it, and if it doesn’t feel like it it need not prosecute?

Paul L. Hoffman:

–No.

What it means is that Mexico is under a good faith international obligation to submit the case for prosecution, and if the case warrants prosecution it will prosecute, and that is the same arrangement that the United States made.

I mean, the United States has made no great a commitment to Mexico, that if the reverse situation is the case… and this is a treaty that has benefits and limitations for both sides that are important.

This protects Americans, too, and if the shoe were on the other foot, and if the Mexican agents come into the United States to Los Angeles and kidnap the DEA agents that they have requested under the extradition treaty in this case, I don’t think that anyone would believe that this treaty… that it would be consistent with this treaty to go outside that extradition process that’s set up by the treaty and to kidnap those DEA agents, bring them down to Mexico, and say that it’s fine for them to be tried.

The treaty cannot be read that way.

That would be… I think it would be blatantly a bad faith interpretation of the treaty to allow either country to perform in that way.

Mr. Chief Justice, I–

William H. Rehnquist:

Thank you, Mr. Hoffman.

General Starr, you have 3 minutes remaining.

General Starr, may I ask you one quick question before you get onto what you’re otherwise going to say?

Do you understand the rule of specialty to have been a customary principle of international law, so that technically its inclusion in this treaty would have been unnecessary?

Kenneth W. Starr:

I think that the court did not come… I don’t understand that to be the case.

I understand it to be the case that the practice of nations was one that had given rise to various disputes.

The court in Rauscher then examined that practice and then examined the specific context of the Webster-Ashburton Treaty itself, came to the view that the doctrine of specialty was in fact understood to be a resolution of the conflict in that particular instance, and then secondly that that understanding was confirmed by statutes passed by Congress, so that briefly is our understanding of Rauscher.

Antonin Scalia:

General Starr, do you agree that Mexico had an obligation to prosecute under Article 9–

Kenneth W. Starr:

The… my… I’m sorry.

John Paul Stevens:

–If the evidence was adequate?

Kenneth W. Starr:

My understanding of the treaty, I take it at its terms, is that they shall submit it to the prosecution, but it’s up to the prosecution to then determine to the appropriate authorities.

We would simply submit it to the Government of Mexico, but there’s no express obligation in 9(2) for a prosecution to actually be brought.

There’s… it would be completely consistent with the literal language of the treaty for the prosecution to be declined.

Antonin Scalia:

Well, don’t you think there’s a good faith obligation to prosecute if they thought the evidence warranted it?

The United States doesn’t think that’s what this treaty means?

Kenneth W. Starr:

I don’t think the treaty by its terms–

John Paul Stevens:

I understand what the treaty by its terms said.

Kenneth W. Starr:

–Requires… obviously, the parties to any contract or covenant or compact should proceed in good faith, but nonetheless there is no specific requirement.

Now, very, very briefly, legal backdrop is very important.

This Court has said that recently, that the legal context is important, and therefore the understanding of Ker is quite important.

The executive branch has relied on our understanding of Ker, and when we look to what Ker itself says in addition, as confirmed by what Justice Black said in Frisbie v. Collins, what Justice Miller said in citing his authorities of highest respectability, it was not only common law authorities but English authorities, including his lead authority was an English authority where an individual had been seized in Belgium by an English police officer, and yet the principle stood that the court does not divest itself of jurisdiction by virtue of a forcible or illegal, flagrant if you will, kidnapping, the point remains that the jurisdiction of the court remains intact.

That is the legal backdrop.

It was reaffirmed by the Government of the United States to Mexico as Justice Kennedy noted.

That has been our clear understanding, and more than that, those who believe that the practice of international relations should be more enlightened have had a proposed provision there on the books for almost a half-century in the Harvard project.

It has not found its way into a single one of our treaties.

That I think is terribly important.

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

The case is submitted.