International fidnapping in a Violent World: Where the United States Ought to Draw the Line

• Author: Scott S Evans
• Pages: 05

1. Introduction

On Thursday, November 14, 1991, the United States handed dawn indictments against Abdel Basset Ali sl-Mepahi and Lamen Khalifa Fhimah, two Libyans, for their parts u1 the December 21, 1988, bombing of Pan h Flight 103 over Lackerbie, Seotland, which killed 270 people.' The next day, the White House said that the act would not go unpunished. Resident Bush refused to rule out any action against the Libyan State or the individuals involved.2 Although not specifically mentioned, one of the possible actions the President may authorize is the forcible abduction of the two Libyans from their home state.8 The purpose of the abduction would be to try these individuals in the United States for the murder of American citizens who were aboard the fight. Thisarticle addresses the ramifications of such a potential action. The topic has become increasingly important during the past year and has been before the Supreme Court of the United States.'

The legality of state-sanctioned international kidnapping is one of the foremost concerns in domestic national security and international law. The ultimate question 1s a8 follows: When may the United States properly sponaor the rendition of an indi~dual

*Student. Urnvarsity of Virginia Sehwl of Law. Clerk, Otten, Jobnmn, Rabmaon, Neff & Raganstti, PC., Denver, Colorado. 1992. This article 1s based upon a mtten dmertatmn that the author aubmtted ta Roleasor John NortonMoore to antiafy. ~n part, the cowme reqyllemente for the Graduate Seminar YI

Contemporary kgal Thought (kgal Education), Unrveraity of Virgma Sehwl of Law, Fall 1991.

'Irom~ally, the lndrrtmenta were announced by themacting Attorney General Wdhsm Barr who authorsd the arrant adrmnistration'i Isgal position,which allowe abduction of indindvala from foreign mil. Barr ia now the Attorney. GF"DId

'Tom Poat et sl., Who Paid for the Bullet?, NEWSWEEX, No". 26, 1991, st 26.

from foreign soil when the United States does not have consent for the abduction fmm the foreign sovereign? Some commentators suggest that a complete bar to kidnapping exists, while others seekto justify it under almost any circumstance. These extreme positions ignore bath practical and rule of law concerns. l h s article attempts to set out a middle ground that is comfortable to both sides of the debate

The United States' answer to the above question will affect fundamental issues such 88 national security, world order and human rights. The competing interests are substantial and create a myriad of problems. At the very root of this issue ir the Umted States' interest in enforcing its lawsespecially m the areas of terrorism and narcotics trafficking-and its need to provide security for American citizens as they travel through a world of interrelated policies and economies. Against these secunty can-cerna, the nghts of individuals must be balanced against the nghts of states. The United States must addreas these concerns while playing the role of world policeman and, simulraneously, while trymg to guide the world legal standard to the rule of law. Internally, of cow~e, the three branches of government-the executive, the legislative, and the judicial-always ulll compete to asaert their interests. The most important competing interests in ths area, however, derive from the common issue that defines this area of controversy-that is, detemrning the practical limitations, if any, on a nation's adhering to the rule of law and in a complex and often unfriendly world. Thomas Jefferson commented on this issue m the fallowng manner:

A stnct observance of the written laws is doubtleas one of the high duties of a goad citizen, but It is not the hghest. The laws of necessity, of self-preservation of saving our country when in danger, are of higher obligation. To lase our country by a scrupulous adherence to the mitten law, would be ta lose the law itself, mth Life, liberty, property and all those who are enjoying them wth UB; thus absurdly sacrificing the end to the means.5

Jefferson's logic IS Bound, but a difficulty still lies in determining exactly where to draw the line between the 'high" duty of observing the rule of law, and the 'higher obligation" of national self-preservation and neeeesity.

'Letter from Thomas Jefferson 1

J B Colnn iseot. 20 1810). ~n XI1WRITINOB 01 Tm- JEP~.RSON,

MBMORU EDII~ON

418' (Llpeuimb ed. 1908)iemphaais sddedl. The qumteaaentd axmnple of thls IS the dilemma of what om would do If he or ahe could get at the dew1 by stnhng down the rule of law

iwai INTERNATIONAL XIDNMPEVG 189

If the United States is to take the lead in promoting universal values in a new world order,6 it must decide what is just. In a coherent world in which the rule of law' is controlling, however, domestic and international laws must be coneistent and predictable. Any good legal system therefore must have the characteristics of consistency and predictability.

This article mll attempt to specify where and how the United States should "draw the line" in the area of international kidnapping It first will discuss two examples of the abduction of a foreign citizen by the United States.8 The article then will turn to the current state of international and domestic law and how it deve1oped.g Next, it will examine the general concerns over abducting foreign nationels.10 Finally, this article will analyze the application of the miss that have developed and will propose a set of circumstauces under which an abduction mght be consistent, both with a nation's practical concerns and with the d e of law.1'

11. The Setting

A The Capture of Fawai Yunu

Fawaz Yunis'z was a citizen and resident of Lebanon. On the morning of June 11, 1985, Yunis and four assoeiates boarded a

Vhapite the abductiane wurnng dvnng hi8 sdmmmtratmn. Presdent Bush daflnas and mpports the new world order in thia way "[The1 new world ordar Lid an order in -uhieh no nation muit surrender one iota of ita ownmvere~gnly; an order eharaetaneed by the rvla of law rather than ths ~esort to force: the cooperative settlement 01 disputes, rather than anarchy and bloodshed and an unatmting belief m human rights? President George Bush. Tha Urvted Nation. in a Nsw Era, Addresa before the U.N. General hasmbly iSept. 23,1991). I" DISPATCH,

Sept. 30. 1991, at 720.'For a diaovaiion and application of the d e of law m a related context I L ~

Jolw NORTON MOORB, h w urn ~1(6

GREN*DA

however,

II/ ntdly unportmt. Even m the short m, law serve8 as B standard of appr~lial for national wtmm and ili a meam of tommunicating intentions to bath fnend and foe, and prceptions about la.ufulneaa can profoundly mfluence both natland and International IIYODOT~ far mrttl~lar mtmna." Id.

.. . 8SII L"fr0 part 11.@See in* part 111

>'See ."fie PBrt v

mfio part N

"Fawaz Y-8 was the subject of ~wersl federal distnct eowt mhngi

which held that indivldusli me not empowerad to enforce extradition treaties end that comtitutional due pmem protcctiona apply to ahens abroad. Umted Ststea

V. Yuoii, 681 F. Supp. 909 (D.D.C. 1888). Tha Supreme Court has held that, vndar many oirnunstances, an indimdual may not enforoe an extradition treaty. Unllld State8 V. Verdugo-Urquidez, 491 U.S. 259 (1990) iVerdugs 0 But see United States Y. Reucher, 119 U.S.

407 (1886). The Court, however. also haa held that, in mme sii-tance8, the Conetitubion d m not apply to diem abroad. Verdugo I, 494 U.S. at 259 (holding that the Constitutm does not piohbit unlswfd iearehee of disn p~emibee abroad)

Mrssmx 1 il9841. "Law,

Royal Jordanian Airlines Boeing B-727 airera% at the Beirut International Airport. The plane's destination was Amman, Jordan The hijackers, armed with grenades and assault rifles, demanded to be taken to Tunis, where a summit of the Arab League was in progress. Once in the air, the Tunisian government twice refused the hljacked plane permission to land. The plane stopped to refuel in Larnaca, Cy~rus, and in Palermo, Sicily. It eventually returned to Beirut. Once back in Bemt, Yunia and his associates released the crew and passengers's and wired the plane with explosives. Yunis then read a statement demanding the expulsion of Palestinians from Lebanon. The hjaekers fired their weapons at the plane and it exploded. No one was injured.

Although Yunia was not the most nefanous of termnsts wanted by the United States government,l& he was liwng openly in Beirut and was considered an important player in the Middle East terrorism network. He therefore was considered a "wable target."'b ks a result, Yunia was charged with hostage taking, hijaclung, and the destmction of a plane.16 The United States then began to formulate a plan io capture and bling Yunis to the United States to stand trial. The goal, according to one offimal, was to '"teach them a lesson far beyond what the threat of force could convey. Wewill get [tho termrists] on our turf On the law."" The plan became known as "Operation Goldenrod."'* Planmng of the operation involved a number of agencies and was coordinated through the white House Sub-Group on Terrorism. In early 1987, Ohver Revell, an Executive Assistant Director of the Federal Bureau of Investigation (FBI) and representatives from the Department of Defense, the Department of State, and the Department of Justice began to devise the plan to capture Yunis without the aid of any other stak.18 The FBI took the lead mle in the planning of the operation and solicited the help of Jamal Hamdan. Hamdan was a *end of Y m s who subsequently had become B United States government informant. The lure to catch Y u s was a lucrative narcotics deal.

ISThree of the...