By its approval Monday of the kidnapping of criminal suspects from other countries, the Supreme Court gave a new and fiendishly simple definition of international law: It is whatever the U.S. government decides it is.
Never mind that a suspect may be a citizen of the other country. Never mind that the other nation may object. Never mind that orderly procedures for handling such matters may have been painstakingly set out in extradition treaties.
What the court said, in effect, is that if Uncle Sam wants someone, he can go out and grab him. There may be a way to square that with the notion of lawful, orderly process. But that way is not readily apparent.
The court`s baffling 6-to-3 ruling came in the case of Humberto Alvarez Machain, a Mexican doctor implicated in the torture and murder of a U.S. drug agent in Guadalajara in 1985. Alvarez was seized by Mexican bounty hunters in response to a $50,000 reward offered by the U.S. Drug Enforcement Administration. The bounty hunters flew him to El Paso and turned him over to U.S. authorities.
In his majority opinion, Chief Justice William H. Rehnquist allowed that the doctor`s lawyers ”may be right” in describing his abduction as
”shocking.”
But it wasn`t illegal, Rehnquist said, because the extradition treaty between the U.S. and Mexico did not explicitly forbid abduction or provide that extradition was the only means of gaining custody of a foreign suspect for trial.
When the treaty was adopted in 1978, the chief justice said, Mexico knew that U.S. case law allowed for abductions. In other words, the Mexicans should have known Uncle Sam had his fingers crossed.
”Monstrous,” Associate Justice John Paul Stevens wrote in dissent. ”It is shocking that a party to an extradition treaty might believe that it has secretly reserved the right to make seizures of citizens in the other party`s territory.”
Stevens got it just right. The very purpose of an extradition treaty is to establish a measure of law, trust and orderly process between sovereigns and eliminate the need for resort to such actions as kidnapping. But the implication of Rehnquist`s decision is that, unless a treaty outlaws an action, it is allowed.
Mexico is not blameless in this affair. Governmental foot-dragging in the pursuit and prosecution of the killers of DEA agent Enrique Camarena fed frustration and anger among U.S. authorities and, ultimately, provoked the resort to kidnapping.
But it is one thing for executive branch officials to stretch, or even overstep, their authority. It is quite another for the nation`s highest court to approve it.
The court`s decision already has provoked Mexico to suspend all cooperative anti-drug efforts with the U.S. But the damage does not stop there.
None of the more than 100 extradition treaties between the U.S. and other nations explicitly prohibits kidnapping. Each of those nations may fairly wonder whether they are not now vulnerable to the same sort of insult and intrusion as Mexico. More than that, they must wonder about the meaning and value of all their agreements with the U.S.
The diplomatic cost of this dubious judicial decision could turn out to be very high indeed.
