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SUPREME COURT OF THE UNITED STATES
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No. 91-712
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UNITED STATES, PETITIONER v. HUMBERTO
ALVAREZ-MACHAIN
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 15, 1992]

  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 that
he be returned to Mexico and has represented that he will
be prosecuted and punished for his alleged offense.  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 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 Govern-
ments desire -to cooperate more closely in the fight against
crime and, to this end, to mutually render better assistance
in matters of extradition.-  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, the delineation of the procedures
and evidentiary requirements for extradition, the special
provisions for political offenses and capital punishment,
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.-  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.-
  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 extradi-
tion 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, 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.  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 avail-
able because they, too, were not explicitly prohibited by the
Treaty.  That, however, is a highly improbable interpreta-
tion of a consensual agreement, which on its face appears
to have been intended to set forth comprehensive and
exclusive rules concerning the subject of extradition.  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 consider-
ation of the -legal context- in which the Treaty was negoti-
ated.  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.  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 jurisdic-
tion 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.  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 main-
tained 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 jurisdic-
tion.
  Although the Court's conclusion in Rauscher was support-
ed by  a number of judicial precedents, the holdings in
these cases were not nearly as uniform as the consensus
of international opinion that condemns one Nation's
violation of the territorial integrity of a friendly neigh-
bor.  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.
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 mon-
strous 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).

  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 appre-
hended.-  1 Oppenheim's International Law 295, and n.
1 (H. Lauterpacht 8th ed. 1955).

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 govern-
ment, 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).-

  In the Rauscher case, the legal background that support-
ed 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.  If Rauscher was correctly
decided--and I am convinced that it was-its rationale
clearly dictates a comparable result in this case.
                            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, 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 ascer-
tain 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 unmani-
fested 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.  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 forfei-
ture 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
possessions for adjudication in accordance with' the
applicable laws.  Thereby, Great Britain agreed that
adjudication may follow a rightful seizure.  Our Gov-
ernment, 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 govern-
ment of the United States.-  Ker v. Illinois, 119 U. S., at 443
(emphasis added).  The exact opposite is true in this
case, as it was in Cook.
  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 Re-
search 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.  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.
                            IV
  As the Court observes at the outset of its opinion, there
is reason to believe that respondent participated in an
especially brutal murder of an American law enforcement
agent.  That fact, if true, may explain the Executive's
intense interest in punishing respondent in our courts.
Such an explanation, however, provides no justification for
disregarding the Rule of Law that this Court has a duty to
uphold.  That the Executive may wish to reinterpret
the Treaty to allow for an action that the Treaty in no way
authorizes should not influence this Court's interpreta-
tion.  Indeed, the desire for revenge exerts -a kind of
hydraulic pressure . . . before which even well settled
principles of law will bend,- Northern Securities Co. v.
United States, 193 U. S. 197, 401 (1904) (Holmes, J.,
dissenting), but it is precisely at such moments that we
should remember and be guided by our duty -to render
judgment evenly and dispassionately according to law, as
each is given understanding to ascertain and apply it.-
United States v. Mine Workers, 330 U. S. 258, 342 (1947)
(Rutledge, J., dissenting).  The way that we perform that
duty in a case of this kind sets an example that other
tribunals in other countries are sure to emulate.
  The significance of this Court's precedents is illustrated
by a recent decision of the Court of Appeal of the Republic
of South Africa.  Based largely on its understanding of the
import of this Court's cases-including our decision in Ker
v. Illinois-that court held that the prosecution of a
defendant kidnaped by agents of South Africa in another
country must be dismissed.  S v. Ebrahim, S. Afr. L. Rep.
(Apr.-June 1991).  The Court of Appeal of South Af-
rica-indeed, I suspect most courts throughout the civilized
world-will be deeply disturbed by the -monstrous- decision
the Court announces today.  For every Nation that has an
interest in preserving the Rule of Law is affected, directly
or indirectly, by a decision of this character.  As Thomas
Paine warned, an -avidity to punish is always dangerous to
liberty- because it leads a Nation -to stretch, to misinter-
pret, and to misapply even the best of laws.-  To counter
that tendency, he reminds us:
-He that would make his own liberty secure must
guard even his enemy from oppression; for if he
violates this duty he establishes a precedent that will
reach to himself.-
  I respectfully dissent.