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SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. ALVAREZ-MACHAIN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-712.  Argued April 1, 1992-Decided June 15, 1992

Respondent, a citizen and resident of Mexico, was forcibly
kidnapped from his home and flown by private plane to Texas,
where he was arrested for his participation in the kidnapping
and murder of a Drug Enforcement Administration (DEA) agent and
the agent's pilot.  After concluding that DEA agents were
responsible for the abduction, the District Court dismissed the
indictment on the ground that it violated the Extradition Treaty
between the United States and Mexico (Extradition Treaty or
Treaty), and ordered respondent's repatriation.  The Court of
Appeals affirmed.  Based on one of its prior decisions, the court
found that, since the United States had authorized the abduction
and since the Mexican government had protested the Treaty
violation, jurisdiction was improper.

Held: The fact of respondent's forcible abduction does not
prohibit his trial in a United States court for violations of
this country's criminal laws.  Pp. 3-15.

 (a) A defendant may not be prosecuted in violation of the
terms of an extradition treaty.  United States v.  Rauscher, 119
U.S. 407.  However, when a treaty has not been invoked, a court
may properly exercise jurisdiction even though the defendant's
presence is procured by means of a forcible abduction.  Ker v.
Illinois, 119 U. S. 436.  Thus, if the Extradition Treaty does
not prohibit respondent's abduction, the rule of Ker applies and
jurisdiction was proper.  Pp. 3-7.

 (b) Neither the Treaty's language nor the history of
negotiations and practice under it supports the proposition
that it prohibits abductions outside of its terms.  The Treaty
says nothing about either country refraining from forcibly
abducting people from the other's territory or the consequences
if an abduction occurs.  In addition, although the Mexican
government was made aware of the Ker doctrine as early as 1906,
and language to curtail Ker was drafted as early as 1935, the
Treaty's current version contains no such clause.  Pp. 7-11.

 (c) General principles of international law provide no
basis for interpreting the Treaty to include an implied term
prohibiting international abductions.  It would go beyond
established precedent and practice to draw such an inference from
the Treaty based on respondent's argument that abductions are so
clearly prohibited in international law that there was no reason
to include the prohibition in the Treaty itself.  It was the
practice of nations with regard to extradition treaties that

formed the basis for this Court's decision in Rauscher, supra, to
imply a term in the extradition treaty between the United States
and England.  Respondent's argument, however, would require a
much larger inferential leap with only the most general of
international law principles to support it.  While respondent may
be correct that his abduction was "shocking" and in violation of
general international law principles, the decision whether he
should be returned to Mexico, as a matter outside the Treaty, is
a matter for the Executive Branch.  Pp. 11-15.

946 F. 2d 1466, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which BLACKMUN and
O'CONNOR, JJ., joined.

[June 15, 1992]

 THE CHIEF JUSTICE delivered the opinion of the Court.

 The issue in this case is whether a criminal defendant,
abducted to the United States from a nation with which it has an
extradition treaty, thereby acquires a defense to the
jurisdiction of this country's courts.  We hold that he does not,
and that he may be tried in federal district court for violations
of the criminal law of the United States.

         Respondent, Humberto Alvarez-Machain, is a citizen and
resident of Mexico.  He was indicted for participating in the
kidnap and murder of United States Drug Enforcement
Administration (DEA) special agent Enrique Camarena-Salazar and a
Mexican pilot working with Camarena, Alfredo Zavala-Avelar. [1]
The DEA believes that respondent, a medical doctor, participated
in the murder by prolonging agent Camarena's life so that others
could further torture and interrogate him.  On April 2, 1990,
respondent was forcibly kidnapped from his medical office in
Guadalajara, Mexico, to be flown by private plane to El Paso,
Texas, where he was arrested by DEA officials.  The District
Court concluded that DEA agents were responsible for respondent's
abduction, although they were not personally involved in it.
United States v. Caro- Quintero, 745 F. Supp. 599, 602-604, 609
(CD Cal. 1990). [2]

/* One problem with the ruling is that it might encourage other
countries to take the same view. "Hard cases" make bad law. */

 Respondent moved to dismiss the indictment, claiming that
his abduction constituted outrageous governmental conduct, and
that the District Court lacked jurisdiction to try him because he
was abducted in violation of the extradition treaty between the
United States and Mexico.  Extradition Treaty, May 4, 1978,
[1979] United States-United Mexican States, 31 U. S. T. 5059,
T.I.A. S. No.  9656 (Extradition Treaty or Treaty).  The District
Court rejected the outrageous governmental conduct claim, but
held that it lacked jurisdiction to try respondent because his
abduction violated the Extradition Treaty.  The district court
discharged respondent and ordered that he be repatriated to
Mexico.  Caro-Quintero, supra, at 614.

 The Court of Appeals affirmed the dismissal of the
indictment and the repatriation of respondent, relying on its
decision in United States v. Verdugo-Urquidez, 939 F.  2d 1341
(CA9 1991), cert. pending, No. 91-670.  946 F. 2d 1466 (1991).
In Verdugo, the Court of Appeals held that the forcible abduction
of a Mexican national with the authorization or participation of
the United States violated the Extradition Treaty between the
United States and Mexico. [3] Although the Treaty does not
expressly prohibit such abductions, the Court of Appeals held
that the "purpose" of the Treaty was violated by a forcible
abduction, 939  F.2d, at 1350, which, along with a formal protest
by the offended nation, would give a defendant the right to
invoke the Treaty violation to defeat jurisdiction of the
district court to try him. [4] The Court of Appeals further held
that the proper remedy for such a violation would be dismissal of
the indictment and repatriation of the defendant to Mexico.

 In the instant case, the Court of Appeals affirmed the
district court's finding that the United States had authorized
the abduction of respondent, and that letters from the Mexican
government to the United States government served as an official
protest of the Treaty violation.  Therefore, the Court of Appeals
ordered that the indictment against respondent be dismissed and
that respondent be repatriated to Mexico.  946 F. 2d, at 1467.
We granted certiorari, 502 U. S. -- (1992), and now reverse.

 Although we have never before addressed the precise issue
raised in the present case, we have previously considered
proceedings in claimed violation of an extradition treaty, and
proceedings against a defendant brought before a court by means
of a forcible abduction.  We addressed the former issue in United
States v. Rauscher, 119 U. S.  407 (1886); more precisely, the
issue of whether the Webster-Ashburton Treaty of 1842, 8 Stat.
576, which governed extraditions between England and the United
States, prohibited the prosecution of defendant Rauscher for a
crime other than the crime for which he had been extradited.
Whether this prohibition, known as the doctrine of specialty, was
an intended part of the treaty had been disputed between the two
nations for some time.  Rauscher, 119 U.S., at 411.  Justice
Miller delivered the opinion of the Court, which carefully
examined the terms and history of the treaty; the practice of
nations in regards to extradition treaties; the case law from the
states; and the writings of commentators, and reached the
following conclusion:

      [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
      offences described in that treaty, and for the offence
      with which he is charged in the proceedings for his
      extradition, until a reasonable time and opportunity
      have been given him, after his release or trial upon
      such charge, to return to the country from whose asylum
      he had been forcibly taken under those proceedings."
      Id., at 430 (emphasis added).

 In addition, Justice Miller's opinion noted that any
doubt as to this interpretation was put to rest by two federal
statutes which imposed the doctrine of specialty upon extradition
treaties to which the United States was a party.  Id., at 423.
[5] Unlike the case before us today, the defendant in Rauscher
had been brought to the United States by way of an extradition
treaty; there was no issue of a forcible abduction.

 In Ker v.  Illinois, 119 U. S.  436 (1886), also written
by Justice Miller and decided the same day as Rauscher, we
addressed the issue of a defendant brought before the court by
way of a forcible abduction.  Frederick Ker had been tried and
convicted in an Illinois court for larceny; his presence before
the court was procured by means of forcible abduction from Peru.
A messenger was sent to Lima with the proper warrant to demand
Ker by virtue of the extradition treaty between Peru and the
United States.  The messenger, however, disdained reliance on the
treaty processes, and instead forcibly kidnapped Ker and brought
him to the United States. [6] We distinguished Ker's case from
Rauscher, on the basis that Ker was not brought into the United
States by virtue of the extradition treaty between the United
States and Peru, and rejected Ker's argument that he had a right
under the extradition treaty to be returned to this country only
in accordance with its terms. [7] We rejected Ker's due process
argument more broadly, holding in line with "the highest
authorities" that "such forcible abduction is no sufficient
reason why the party should not answer when brought within the
jurisdiction of the court which has the right to try him for such
an offence, and presents no valid objection to his trial in such
court." Ker, supra, at 444.

 In Frisbie v.  Collins, 342 U. S. 519, rehearing denied,
343 U.S. 937 (1952), we applied the rule in Ker to a case in
which the defendant had been kidnapped in Chicago by Michigan
officers and brought to trial in Michigan.  We upheld the
conviction over objections based on the due process clause and
the Federal Kidnapping Act and stated:

       This Court has never departed from the rule announced
      in [Ker] that the power of a court to try a person for
      crime is not impaired by the fact that he had been
      brought within the court's jurisdiction by reason of a
      `forcible abduction.' No persuasive reasons are now
      presented to justify overruling this line of cases.
      They rest on the sound basis that due process of law is
      satisfied when one present in court is convicted of
      crime after having been fairly apprized of the charges
      against him and after a fair trial in accordance with
      constitutional procedural safeguards.  There is nothing
      in the Constitution that requires a court to permit a
      guilty person rightfully convicted to escape justice
      because he was brought to trial against his will."
      Frisbie, supra, at 522 (citation and footnote omitted).
      [8]

/* The problem of course being that this works both ways. What
would the react be to President Bush being abducted by Iraq for
crimes under Iraqi law? */

 The only differences between Ker and the present case are
that Ker was decided on the premise that there was no
governmental involvement in the abduction, 119 U. S., at 443; and
Peru, from which Ker was abducted, did not object to his
prosecution. [9] Respondent finds these differences to be
dispositive, as did the Court of Appeals in Verdugo, 939 F. 2d,
at 1346, contending that they show that respondent's prosecution,
like the prosecution of Rauscher, violates the implied terms of a
valid extradition treaty.  The Government, on the other hand,
argues that Rauscher stands as an "exception" to the rule in Ker
only when an extradition treaty is invoked, and the terms of the
treaty provide that its breach will limit the jurisdiction of a
court.  Brief for United States 17.  Therefore, our first inquiry
must be whether the abduction of respondent from Mexico violated
the extradition treaty between the United States and Mexico.  If
we conclude that the Treaty does not prohibit respondent's
abduction, the rule in Ker applies, and the court need not
inquire as to how respondent came before it.  In construing a
treaty, as in construing a statute, we first look to its terms to
determine its meaning.  Air France v. Saks, 470 U. S.  392, 397
(1985); Valentine v.  United States ex.  rel. Neidecker, 299 U.
S. 5, 11 (1936).  The Treaty says nothing about the obligations
of the United States and Mexico to refrain from forcible
abductions of people from the territory of the other nation, or
the consequences under the Treaty if such an abduction occurs.
Respondent submits that Article 22(1) of the Treaty which states
that it "shall apply to offenses specified in Article 2
[including murder] committed before and after this Treaty enters
into force," 31 U.  S.  T., at 5073-5074, evidences an intent to
make application of the Treaty mandatory for those offenses.
However, the more natural conclusion is that Article 22 was
included to ensure that the Treaty was applied to extraditions
requested after the Treaty went into force, regardless of when
the crime of extradition occurred. [10]

/* Foreign policy (which is the reason given by the defense for
dismissing the charges is uniquely within the province of the
Executive branch. The Executive Branch opposes return, which
shows that the official policy of the US does not recognize the
claim made by the defendant. */

 More critical to respondent's argument is Article 9 of
the Treaty which provides:

"1.  Neither Contracting Party shall be bound to deliver up its
own nationals, but the executive authority of the requested Party
shall, if not prevented by the laws of that Party, have the power
to deliver them up if, in its discretion, it be deemed proper to
do so.

"2.  If extradition is not granted pursuant to paragraph 1 of
this Article, the requested Party shall submit the case to its
competent authorities for the purpose of prosecution, provided
that Party has jurisdiction over the offense."
Id., at 5065.

According to respondent, Article 9 embodies the terms of the
bargain which the United States struck:  if the United States
wishes to prosecute a Mexican national, it may request that
individual's extradition.  Upon a request from the United States,
Mexico may either extradite the individual, or submit the case to
the proper authorities for prosecution in Mexico.  In this way,
respondent reasons, each nation preserved its right to choose
whether its nationals would be tried in its own courts or by the
courts of the other nation.  This preservation of rights would be
frustrated if either nation were free to abduct nationals of the
other nation for the purposes of prosecution.  More broadly,
respondent reasons, as did the Court of Appeals, that all the
processes and restrictions on the obligation to extradite
established by the Treaty would make no sense if either nation
were free to resort to forcible kidnapping to gain the presence
of an individual for prosecution in a manner not contemplated by
the Treaty.  Verdugo, supra, at 1350.

 We do not read the Treaty in such a fashion.  Article 9
does not purport to specify the only way in which one country may
gain custody of a national of the other country for the purposes
of prosecution.  In the absence of an extradition treaty, nations
are under no obligation to surrender those in their country to
foreign authorities for prosecution.  Rauscher, 119 U. S., at
411-412; Factor v. Laubenheimer, 290 U. S. 276, 287 (1933); cf.
Valentine v.  United States ex. rel.  Neidecker, supra, at 8-9
(United States may not extradite a citizen in the absence of a
statute or treaty obligation).  Extradition treaties exist so as
to impose mutual obligations to surrender individuals in certain
defined sets of circumstances, following established procedures.
See 1 J.  Moore, A Treatise on Extradition and Interstate
Rendition, 72 (1891).  The Treaty thus provides a mechanism which
would not otherwise exist, requiring, under certain
circumstances, the United States and Mexico to extradite
individuals to the other country, and establishing the procedures
to be followed when the Treaty is invoked.

 The history of negotiation and practice under the Treaty
also fails to show that abductions outside of the Treaty
constitute a violation of the Treaty.  As the Solicitor General
notes, the Mexican government was made aware, as early as 1906,
of the Ker doctrine, and the United States' position that it
applied to forcible abductions made outside of the terms of the
United States-Mexico extradition treaty. [11] Nonetheless, the
current version of the Treaty, signed in 1978, does not attempt
to establish a rule that would in any way curtail the effect of
Ker. [12] Moreover, although language which would grant
individuals exactly the right sought by respondent had been
considered and drafted as early as 1935 by a prominent group of
legal scholars sponsored by the faculty of Harvard Law School, no
such clause appears in the current treaty. [13]

 Thus, the language of the Treaty, in the context of its
history, does not support the proposition that the Treaty
prohibits abductions outside of its terms.  The remaining
question, therefore, is whether the Treaty should be interpreted
so as to include an implied term prohibiting prosecution where
the defendant's presence is obtained by means other than those
established by the Treaty.  See Valentine, 299 U. S., at 17
("Strictly the question is not whether there had been a uniform
practical construction denying the power, but whether the power
had been so clearly recognized that the grant should be
implied").

 Respondent contends that the Treaty must be interpreted
against the backdrop of customary international law, and that
international abductions are "so clearly prohibited in
international law" that there was no reason to include such a
clause in the Treaty itself.  Brief for Respondent 11.  The
international censure of international abductions is further
evidenced, according to respondent, by the United Nations Charter
and the Charter of the Organization of American States.  Id., at
17.

 Respondent does not argue that these sources of
international law provide an independent basis for the right
respondent asserts not to be tried in the United States, but
rather that they should inform the interpretation of the Treaty
terms.

 The Court of Appeals deemed it essential, in order for
the individual defendant to assert a right under the Treaty, that
the affected foreign government had registered a protest.
Verdugo, 939 F.  2d, at 1357 ("in the kidnapping case there must
be a formal protest from the offended government after the
kidnapping").  Respondent agrees that the right exercised by the
individual is derivative of the nation's right under the Treaty,
since nations are authorized, notwithstanding the terms of an
extradition treaty, to voluntarily render an individual to the
other country on terms completely outside of those provided in
the Treaty.  The formal protest, therefore, ensures that the
"offended" nation actually objects to the abduction and has not
in some way voluntarily rendered the individual for prosecution.
Thus the Extradition Treaty only prohibits gaining the
defendant's presence by means other than those set forth in the
Treaty when the nation from which the defendant was abducted
objects.

 This argument seems to us inconsistent with the remainder
of respondent's argument.  The Extradition Treaty has the force
of law, and if, as respondent asserts, it is self-executing, it
would appear that a court must enforce it on behalf of an
individual regardless of the offensiveness of the practice of one
nation to the other nation.  In Rauscher, the Court noted that
Great Britain had taken the position in other cases that the
Webster-Ashburton Treaty included the doctrine of specialty, but
no importance was attached to whether or not Great Britain had
protested the prosecution of Rauscher for the crime of cruel and
unusual punishment as opposed to murder.

 More fundamentally, the difficulty with the support
respondent garners from international law is that none of it
relates to the practice of nations in relation to extradition
treaties.  In Rauscher, we implied a term in the
Webster-Ashburton Treaty because of the practice of nations with
regard to extradition treaties.  In the instant case, respondent
would imply terms in the extradition treaty from the practice of
nations with regards to international law more generally. [14]
Respondent would have us find that the Treaty acts as a
prohibition against a violation of the general principle of
international law that one government may not "exercise its
police power in the territory of another state." Brief for
Respondent 16.  There are many actions which could be taken by a
nation that would violate this principle, including waging war,
but it cannot seriously be contended an invasion of the United
States by Mexico would violate the terms of the extradition
treaty between the two nations. [15]

 In sum, to infer from this Treaty and its terms that it
prohibits all means of gaining the presence of an individual
outside of its terms goes beyond established precedent and
practice.  In Rauscher, the implication of a doctrine of
specialty into the terms of the Webster-Ashburton treaty which,
by its terms, required the presentation of evidence establishing
probable cause of the crime of extradition before extradition was
required, was a small step to take.  By contrast, to imply from
the terms of this Treaty that it prohibits obtaining the presence
of an individual by means outside of the procedures the Treaty
establishes requires a much larger inferential leap, with only
the most general of international law principles to support it.
The general principles cited by respondent simply fail to
persuade us that we should imply in the United States-Mexico
Extradition Treaty a term prohibiting international abductions.

 Respondent and his amici may be correct that respondent's
abduction was "shocking," Tr. of Oral Arg. 40, and that it may be
in violation of general international law principles.  Mexico has
protested the abduction of respondent through diplomatic notes,
App.  33-38, and the decision of whether respondent should be
returned to Mexico, as a matter outside of the Treaty, is a
matter for the Executive Branch. [16] We conclude, however, that
respondent's abduction was not in violation of the Extradition
Treaty between the United States and Mexico, and therefore the
rule of Ker v. Illinois is fully applicable to this case.  The
fact of respondent's forcible abduction does not therefore
prohibit his trial in a court in the United States for violations
of the criminal laws of the United States.

 The judgment of the Court of Appeals is therefore
reversed, and the case is remanded for further proceedings
consistent with this opinion.

 So ordered.

/* The footnotes for the main and dissenting opinion are placed
at the end of the dissenting opinion. */


 JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE
O'CONNOR join, dissenting.

 The Court correctly observes that this case raises a
question of first impression.  See ante, at 3.  The case is
unique for several reasons.  It does not involve an ordinary
abduction by a private kidnaper, or bounty hunter, as in Ker v.
Illinois, 119 U.S. 436 (1886); nor does it involve the
apprehension of an American fugitive who committed a crime in one
State and sought asylum in another, as in Frisbie v.  Collins,
342 U. S.  519 (1952).  Rather, it involves this country's
abduction of another country's citizen; it also involves a
violation of the territorial integrity of that other country,
with which this country has signed an extradition treaty.

 A Mexican citizen was kidnaped in Mexico and charged with
a crime committed in Mexico; his offense allegedly violated both
Mexican and American law.  Mexico has formally demanded on at
least two separate occasions [17] that he be returned to Mexico
and has represented that he will be prosecuted and punished for
his alleged offense. [18] It is clear that Mexico's demand must
be honored if this official abduction violated the 1978
Extradition Treaty between the United States and Mexico.  In my
opinion, a fair reading of the treaty in light of our decision in
United States v.  Rauscher, 119 U. S. 407 (1886), and applicable
principles of international law, leads inexorably to the
conclusion that the District Court, United States v.  Caro-
Quintero, 745 F.  Supp. 599 (CD Cal.  1990), and the Court of
Appeals for the Ninth Circuit, 946 F.  2d 1466 (1991) (per
curiam), correctly construed that instrument.

I

 The Extradition Treaty with Mexico [19] is a
comprehensive document containing 23 articles and an appendix
listing the extraditable offenses covered by the agreement.  The
parties announced their purpose in the preamble:  The two
Governments desire "to cooperate more closely in the fight
against crime and, to this end, to mutually render better
assistance in matters of extradition." [20] From the preamble,
through the description of the parties' obligations with respect
to offenses committed within as well as beyond the territory of a
requesting party, [21] the delineation of the procedures and
evidentiary requirements for extradition, [22] the special
provisions for political offenses and capital punishment, [23]
and other details, the Treaty appears to have been designed to
cover the entire subject of extradition.  Thus, Article 22,
entitled "Scope of Application" states that the "Treaty shall
apply to offenses specified in Article 2 committed before and
after this Treaty enters into force," and Article 2 directs that
"[e]xtradition shall take place, subject to this Treaty, for
willful acts which fall within any of [the extraditable offenses
listed in] the clauses of the Appendix." [24] Moreover, as noted
by the Court, ante, at 8, Article 9 expressly provides that
neither Contracting Party is bound to deliver up its own
nationals, although it may do so in its discretion, but if it
does not do so, it "shall submit the case to its competent
authorities for purposes of prosecution." [25]

 Petitioner's claim that the Treaty is not exclusive, but
permits forcible governmental kidnaping, would transform these,
and other, provisions into little more than verbiage.  For
example, provisions requiring "sufficient" evidence to grant
extradition (Art. 3), withholding extradition for political or
military offenses (Art. 5), withholding extradition when the
person sought has already been tried (Art.  6), withholding
extradition when the statute of limitations for the crime has
lapsed (Art. 7), and granting the requested State discretion to
refuse to extradite an individual who would face the death
penalty in the requesting country (Art. 8), would serve little
purpose if the requesting country could simply kidnap the person.
As the Court of Appeals for the Ninth Circuit recognized in a
related case, "[e]ach of these provisions would be utterly
frustrated if a kidnapping were held to be a permissible course
of governmental conduct." United States v. Verdugo-Urquidez, 939
F.2d 1341, 1349 (1991).  In addition, all of these provisions
"only make sense if they are understood as requiring each treaty
signatory to comply with those procedures whenever it wishes to
obtain jurisdiction over an individual who is located in another
treaty nation." Id., at 1351.

 It is true, as the Court notes, that there is no express
promise by either party to refrain from forcible abductions in
the territory of the other Nation.  See ante, at 9.  Relying on
that omission, [26] the Court, in effect, concludes that the
Treaty merely creates an optional method of obtaining
jurisdiction over alleged offenders, and that the parties
silently reserved the right to resort to self help whenever they
deem force more expeditious than legal process. [27] If the
United States, for example, thought it more expedient to torture
or simply to execute a person rather than to attempt extradition,
these options would be equally available because they, too, were
not explicitly prohibited by the Treaty. [28] That, however, is a
highly improbable interpretation of a consensual agreement, [29]
which on its face appears to have been intended to set forth
comprehensive and exclusive rules concerning the subject of
extradition. [30] In my opinion, "the manifest scope and object
of the treaty itself," Rauscher, 119 U. S., at 422, plainly imply
a mutual undertaking to respect the territorial integrity of the
other contracting party.  That opinion is confirmed by a
consideration of the "legal context" in which the Treaty was
negotiated. [31] Cannon v.  University of Chicago, 441 U. S. 677,
699 (1979).

II

 In Rauscher, the Court construed an extradition treaty
that was far less comprehensive than the 1978 Treaty with Mexico.
The 1842 Treaty with Great Britain determined the boundary
between the United States and Canada, provided for the
suppression of the African slave trade, and also contained one
paragraph authorizing the extradition of fugitives "in certain
cases." 8 Stat. 576.  In Article X, each Nation agreed to
"deliver up to justice all persons" properly charged with any one
of seven specific crimes, including murder.  119 U. S., at 421.
[32] After Rauscher had been extradited for murder, he was
charged with the lesser offense of inflicting cruel and unusual
punishment on a member of the crew of a vessel on the high seas.
Although the treaty did not purport to place any limit on the
jurisdiction of the demanding State after acquiring custody of
the fugitive, this Court held that he could not be tried for any
offense other than murder. [33] Thus, the treaty constituted the
exclusive means by which the United States could obtain
jurisdiction over a defendant within the territorial jurisdiction
of Great Britain.

 The Court noted that the Treaty included several specific
provisions, such as the crimes for which one could be extradited,
the process by which the extradition was to be carried out, and
even the evidence that was to be produced, and concluded that
"the fair purpose of the treaty is, that the person shall be
delivered up to be tried for that offence and for no other."
Id., at 423.  The Court reasoned that it did not make sense for
the Treaty to provide such specifics only to have the person
"pas[s] into the hands of the country which charges him with the
offence, free from all the positive requirements and just
implications of the treaty under which the transfer of his person
takes place." Id., at 421.  To interpret the Treaty in a
contrary way would mean that a country could request extradition
of a person for one of the seven crimes covered by the Treaty,
and then try the person for another crime, such as a political
crime, which was clearly not covered by the Treaty; this result,
the Court concluded, was clearly contrary to the intent of the
parties and the purpose of the Treaty.

 Rejecting an argument that the sole purpose of Article X
was to provide a procedure for the transfer of an individual from
the jurisdiction of one sovereign to another, the Court stated:
"No such view of solemn public treaties between the great
nations of the earth can be sustained by a tribunal called
upon to give judicial construction to them.

       The opposite view has been attempted to be maintained
      in this country upon the ground that there is no
      express limitation in the treaty of the right of the
      country in which the offence was committed to try the
      person for the crime alone for which he was extradited,
      and that once being within the jurisdiction of that
      country, no matter by what contrivance or fraud or by
      what pretence of establishing a charge provided for by
      the extradition treaty he may have been brought within
      the jurisdiction, he is, when here, liable to be tried
      for any offence against the laws as though arrested
      here originally.  This proposition of the absence of
      express restriction in the treaty of the right to try
      him for other offences than that for which he was
      extradited, is met by the manifest scope and object of
      the treaty itself." Id., at 422.

 Thus, the Extradition Treaty, as understood in the
context of cases that have addressed similar issues, suffices to
protect the defendant from prosecution despite the absence of any
express language in the Treaty itself purporting to limit this
Nation's power to prosecute a defendant over whom it had lawfully
acquired jurisdiction. [34]

 Although the Court's conclusion in Rauscher was supported
by a number of judicial precedents, the holdings in these cases
were not nearly as uniform [35] as the consensus of international
opinion that condemns one Nation's violation of the territorial
integrity of a friendly neighbor. [36] 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. [37] Justice Story found it shocking enough
that the United States would attempt to justify an American
seizure of a foreign vessel in a Spanish port:

      "But, even supposing, for a moment, that our laws had
      required an entry of the Apollon, in her transit, does
      it follow, that the power to arrest her was meant to be
      given, after she had passed into the exclusive
      territory of a foreign nation?  We think not.  It would
      be monstrous to suppose that our revenue officers were
      authorized to enter into foreign ports and territories,
      for the purpose of seizing vessels which had offended
      against our laws.  It cannot be presumed that Congress
      would voluntarily justify such a clear violation of the
      laws of nations." The Apollon, 9 Wheat. 362, 370-371
      (1824) (emphasis added). [38]

B The law of Nations, as understood by Justice Story in 1824, has
not changed.  Thus, a leading treatise explains:

      "A State must not perform acts of sovereignty in the
      territory of another State.
       . . . . .
      "It is . . .  a breach of International Law for a State
      to send its agents to the territory of another State to
      apprehend persons accused of having committed a crime.
      Apart from other satisfaction, the first duty of the
      offending State is to hand over the person in question
      to the State in whose territory he was apprehended." 1
      Oppenheim's International Law 295, and n. 1 (H.
      Lauterpacht 8th ed. 1955).39


Commenting on the precise issue raised by this case, the chief
reporter for the American Law Institute's Restatement of Foreign
Relations used language reminiscent of Justice Story's
characterization of an official seizure in a foreign jurisdiction
as "monstrous:"

       When done without consent of the foreign government,
      abducting a person from a foreign country is a gross
      violation of international law and gross disrespect for
      a norm high in the opinion of mankind.  It is a blatant
      violation of the territorial integrity of another
      state; it eviscerates the extradition system
      (established by a comprehensive network of treaties
      involving virtually all states). [40]

 In the Rauscher case, the legal background that supported the
decision to imply a covenant not to prosecute for an offense
different from that for which extradition had been granted was
far less clear than the rule against invading the territorial
integrity of a treaty partner that supports Mexico's position in
this case. [41] If Rauscher was correctly decided--and I am
convinced that it was-its rationale clearly dictates a comparable
result in this case. [42]

III

 A critical flaw pervades the Court's entire opinion.  It
fails to differentiate between the conduct of private citizens,
which does not violate any treaty obligation, and conduct
expressly authorized by the Executive Branch of the Government,
which unquestionably constitutes a flagrant violation of
international law,43 and in my opinion, also constitutes a breach
of our treaty obligations.  Thus, at the outset of its opinion,
the Court states the issue as "whether a criminal defendant,
abducted to the United States from a nation with which it has an
extradition treaty, thereby acquires a defense to the
jurisdiction of this country's courts." Ante, at 1.  That, of
course, is the question decided in Ker v. Illinois, 119 U. S. 436
(1886); it is not, however, the question presented for decision
today.

 The importance of the distinction between a court's
exercise of jurisdiction over either a person or property that
has been wrongfully seized by a private citizen, or even by a
state law enforcement agent, on the one hand, and the attempted
exercise of jurisdiction predicated on a seizure by federal
officers acting beyond the authority conferred by treaty, on the
other hand, is explained by Justice Brandeis in his opinion for
the Court in Cook v. United States, 288 U. S. 102 (1933).  That
case involved a construction of a prohibition era treaty with
Great Britain that authorized American agents to board certain
British vessels to ascertain whether they were engaged in
importing alcoholic beverages.  A British vessel was boarded 11
1/2 miles off the coast of Massachusetts, found to be carrying
unmanifested alcoholic beverages, and taken into port.  The
Collector of Customs assessed a penalty which he attempted to
collect by means of libels against both the cargo and the seized
vessel.

 The Court held that the seizure was not authorized by the
treaty because it occurred more than 10 miles off shore. [44] The
Government argued that the illegality of the seizure was
immaterial because, as in Ker, the Court's jurisdiction was
supported by possession even if the seizure was wrongful.
Justice Brandeis acknowledged that the argument would succeed if
the seizure had been made by a private party without authority to
act for the Government, but that a different rule prevails when
the Government itself lacks the power to seize.  Relying on
Rauscher, and distinguishing Ker, he explained:

 "Fourth.  As the Mazel Tov was seized without warrant of
law, the libels were properly dismissed.  The Government contends
that the alleged illegality of the seizure is immaterial.  It
argues that the facts proved show a violation of our law for
which the penalty of forfeiture is prescribed; that the United
States may, by filing a libel for forfeiture, ratify what
otherwise would have been an illegal seizure; that the seized
vessel having been brought into the Port of Providence, the
federal court for Rhode Island acquired jurisdiction; and that,
moreover, the claimant by answering to the merits waived any
right to object to enforcement of the penalties.  The argument
rests upon misconceptions.

       It is true that where the United States, having
      possession of property, files a libel to enforce a
      forfeiture resulting from a violation of its laws, the
      fact that the possession was acquired by a wrongful act
      is immaterial.  Dodge v.  United States, 272 U. S. 530,
      532 [(1926)].  Compare Ker v.  Illinois, 119 U. S. 436,
      444.  The doctrine rests primarily upon the common-law
      rules that any person may, at his peril, seize property
      which has become forfeited to, or forfeitable by, the
      Government; and that proceedings by the Government to
      enforce a forfeiture ratify a seizure made by one
      without authority, since ratification is equivalent to
      antecedent delegation of authority to seize.  Gelston
      v.  Hoyt, 3 Wheat.  246, 310 [(1818)]; Taylor v. United
      States, 3 How. 197, 205-206 [(1845)].  The doctrine is
      not applicable here.  The objection to the seizure is
      not that it was wrongful merely because made by one
      upon whom the Government had not conferred authority to
      seize at the place where the seizure was made.  The
      objection is that the Government itself lacked power to
      seize, since by the Treaty it had imposed a territorial
      limitation upon its own authority.  The Treaty fixes
      the conditions under which a `vessel may be seized and
      taken into a port of the United States, its territories
      or exercised at a greater distance from the coast than
      the vessel could traverse in one hour, and the seized
      vessel's speed did not exceed 10 miles an hour.  Cook
      v. United States, 288 U. S. 102, 107, 110 (1933).


possessions for adjudication in accordance with' the
applicable laws.  Thereby, Great Britain agreed that
adjudication may follow a rightful seizure.  Our Government,
lacking power to seize, lacked power, because of the Treaty,
to subject the vessel to our laws.  To hold that adjudication
may follow a wrongful seizure would go far to nullify the
purpose and effect of the Treaty.  Compare United States v.
Rauscher, 119 U. S.  407." Cook v. United States, 288 U. S.,
at 120-122.

 The same reasoning was employed by Justice Miller to
explain why the holding in Rauscher did not apply to the Ker
case.  The arresting officer in Ker did not pretend to be acting
in any official capacity when he kidnaped Ker.  As Justice Miller
noted, "the facts show that it was a clear case of kidnapping
within the dominions of Peru, without any pretence of authority
under the treaty or from the government of the United States."
Ker v.  Illinois, 119 U. S., at 443 (emphasis added).45 The exact
opposite is true in this case, as it was in Cook.46

 The Court's failure to differentiate between private
abductions and official invasions of another sovereign's
territory also accounts for its misplaced reliance on the 1935
proposal made by the Advisory Committee on Research in
International Law.  See ante, at 10, and n. 13.  As the text of
that proposal plainly states, it would have rejected the rule of
the Ker case.47 The failure to adopt that recommendation does not
speak to the issue the Court decides today.  The Court's
admittedly "shocking" disdain for customary and conventional
international law principles, see ante, at 14, is thus entirely
unsupported by case law and commentary.