"Avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws." (1)
Adolf Eichmann's evasion of arrest and prosecution after World War II until he was located, captured, and brought to Israel for prosecution by Mossad agents is one of the most famous and earliest examples of state-sanctioned kidnapping. (2) Israel ignored the proper channels for obtaining custody of Eichmann and violated the sovereignty of Argentina by sneaking into the country, overpowering Eichmann, and dragging him to Israel to stand trial for his crimes against the Jewish people. (3) Sixty years later the U.S. Supreme Court sanctioned this kind of transborder abduction and found it a proper method for obtaining jurisdiction over a defendant located abroad. (4) In United States v. Alvarez-Machain, (5) DEA agents abducted Alvarez-Machain and brought him to the United States to stand trial for the torture and murder of a DEA agent. (6) Alvarez-Machain challenged jurisdiction, asserting that he was illegally before the California court, but the Supreme Court held that absent explicit language in the extradition treaty between Mexico and the United States withdrawing jurisdiction resulting from transborder kidnapping, circumventing an extradition treaty does not itself violate the treaty. (7)
The Supreme Court's decision in Alvarez-Machain set a dangerous precedent for circumventing extradition law, which could be exploited when the United States seeks to prosecute a criminal physically present in a state with an unfavorable extradition treaty. (8) This risk is most prominent for states that assert an exception to the duty to extradite for capital offenses in their extradition treaties. (9) This death penalty exception is written into many of the extradition treaties to which the United States is party. (10) In the context of the United Nations Convention Against Torture as codified by the United States, the Alvarez-Machain precedent would allow the United States to prosecute torturers domestically and to subject them to the death penalty upon conviction, despite any death penalty exception that would otherwise prevail. (11) The International Criminal Court (ICC) and the domestic law of most of the rest of the countries of the world prohibit the death penalty, so domestic prosecution under 18 U.S.C [section] 2340, in conjunction with the Alvar ez-Machain precedent, would be the only way to implement the death penalty in torture prosecutions. (12)
This Note will argue that the potential for severe exploitation of this precedent in the context of 18 U.S.C. [section] 2340 warrants protecting against it, and will suggest two methods for doing so. Part II of this Note will address the history of extradition law and the death penalty exception, the Alvarez-Machain case, and the ramifications of U.S. codification of the Convention Against Torture. Part III of this Note will describe the reaction to Alvarez-Machain, and its effect on extradition law. Part IV will identify how the Alvarez-Machain and 18 U.S.C. [section] 2340 precedents create a mechanism for circumventing the ICC in order to punish torture defendants with the death penalty, and will suggest two methods for preventing this circumvention.
Extradition Law Requirements and Procedures
This note concerns extradition to the United States, which is the formal surrender of a person by a foreign state of refuge to a requesting state for prosecution or punishment. (13) Because extradition is a function of treaty, bilateral or multilateral, it requires compliance with several specific procedures and doctrines. (14) The United States relies almost exclusively on bilateral extradition treaties that enumerate, inter alia, extraditable offenses, exceptions to the duty to extradite, and the required protocol for extradition. (15) Because a valid extradition request carries with it an affirmative duty to either extradite or prosecute the individual domestically, several criteria precede invocation of an extradition treaty. (16) There are five substantive requirements for extradition to and from the United States: reciprocity, double criminality, an extraditable offense, non-inquiry, and specialty. (17) After a person is deemed extraditable based on these requirements, the Department of Justice makes a formal request to the Department of State, which then makes a formal request to the state where the suspect is located, to be evaluated and then refused or granted based on that state's interpretation of its own domestic laws and the bilateral treaty that state shares with the United States. (18)
1 Extradition After Alvarez-Machain: Establishing the Legality of Transborder Kidnapping
While formal extradition protects the sovereignty of the state of refuge, the rights of the subject of extradition, and the interests of international crime control, it is also a cumbersome, slow, and often ineffective process. (19) Consequently, several alternatives to extradition have emerged. (20) The United States may also obtain personal jurisdiction over a suspect located abroad by waiver, immigration procedures, foreign prosecution, and irregular rendition or abduction of the suspect from the state of refuge. (21) Of these alternatives, abduction of the suspect is the only option that does not require consent of either the state of refuge or the suspect himself. (22) Because formal extradition sometimes fails to produce the subject, state-sanctioned kidnapping has become a real threat to the integrity and implementation of extradition policy because of its perceived necessity in the absence of consent. (23)
U.S. v. Alvarez-Machain
In 1985, Mexican drug traffickers kidnapped, tortured, and killed U.S. Drug Enforcement Agency (DEA) Agent Camarena and his pilot. (24) The investigation that followed implicated twenty-two individuals, seven of whom were found in the United States and prosecuted domestically. (25) The Camarena investigation also implicated Mexican national, Dr. Alvarez-Machain, a doctor suspected of administering care to Agent Camarena to prolong his life so his kidnappers could continue his interrogation and torture. (26) The United States suspected that Mexico would neither extradite nor prosecute Dr. Alvarez-Machain domestically, so the U.S. Attorney General's office authorized his kidnapping from Mexico for prosecution in U.S. state court. (27) Mr. Alvarez-Machain was taken at gunpoint from Mexico to the United States to stand trial. (28) Subsequently, the Mexican embassy requested his repatriation, and declared his abduction a violation of the terms of the U.S.-Mexico Extradition Treaty. (29)
Mr. Alvarez-Machain challenged U.S. jurisdiction, asserting that circumventing extradition by abduction undermined the extradition treaty between the United States and Mexico. (30) Alvarez-Machain also noted that customary international law principles prohibit such abductions as violative of territorial sovereignty. (31) The Supreme Court ultimately upheld Alvarez-Machain's conviction and sanctioned the abduction. (32) The Rehnquist majority opinion found that the method of obtaining jurisdiction over a defendant located abroad is not relevant to the determination of whether jurisdiction is valid; that transborder abduction does not vitiate jurisdiction unless the relevant extradition treaty explicitly forbids abduction as a method of obtaining it. (33) The court applied the Ker-Frisbie Doctrine, which stipulates that U.S. courts recognize jurisdiction over a defendant regardless of the means used to apprehend him, and extended it to scenarios where the state of refuge objects to U.S jurisdiction. (34) The Alvarez-Machain Court chose to only consider the plain language of the Treaty, and found that though it did not condone non-extradition methods of gaining jurisdiction over a defendant, it did not expressly forbid alternatives to extradition either, and thus found state-sanctioned kidnapping a proper method for bringing a defendant under U.S. jurisdiction if the applicable extradition treaty does not expressly bar it. (35)
The frequency with which the United States obtains jurisdiction over suspects located abroad by such transborder abduction is difficult to discern; however, since the Supreme Court upheld jurisdiction resulting from state-sanctioned kidnapping in Alvarez-Machain, many similar cases have been unsuccessfully challenged in U.S. courts because of the precedent. (36) In the wake of Alvarez-Machain, state-sanctioned kidnapping is a legitimate way of manufacturing U.S. jurisdiction over a defendant abroad, even when the state of refuge either has, or would have, objected to U.S. jurisdiction. (37)
The Death Penalty Exception
One reason states of refuge would, and often do, object to U.S. jurisdiction is opposition to U.S implementation of the death penalty as punishment for conviction. (38) Presently, 139 countries have outlawed the death penalty. (39) The United States is one of only 57 countries that retain the death penalty, and the only country in the developed world to use it regularly. (40) The growing international opposition to the death penalty gave rise to a strategy of non-cooperation in extradition with requesting states that retain the death penalty. (41) The United States has therefore used abduction as an alternative to extradition especially where the state of refuge objects to the death penalty and is disinclined to prosecute domestically. (42)
The United Nations, European Union, and Organization of American States have all disfavored the death penalty and taken steps towards forbidding it as punishment. (43) Further, more than 76 countries have signed protocols condemning and outlawing the death penalty. (44) In order to comply with these protocols, many states have resisted extradition to the United States for capital offenses and have written the exception to the...